Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198 - NSWSC 2024 case summary — Zoe

NSWNSWSC

Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198

[2024] NSWSC 198

Supreme Court of NSW|2024-03-05|Before: Hamill J

View original source

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2024-03-05

Before

Hamill J

Catchwords

[2015] NSWCA 221 Clark v Attorney General of New South Wales [2020] NSWCA 70 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93

Source

Original judgment source is linked above.

Catchwords

[2015] NSWCA 221 Clark v Attorney General of New South Wales [2020] NSWCA 70 Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93

Judgment (30 paragraphs)

[1]

The application for review to this Court

The application was filed on 17 February 2023 and was accompanied by the following documents: 1. Email from Mr Zhura to the Supreme Court regarding his application; 2. Medical certificate of Dr Carl Allen dated 31 October 2022; 3. Report of Dr Matthew Davies dated 21 June 2022; 4. Report of Mr Sam Borenstein dated 14 June 2022; 5. Letter of support from Anthony Zhuravlyov dated 11 May 2022; 6. Letter of support of Rachael Zhura dated 17 May 2022; 7. The court attendance notices ("CAN") and facts sheets for his offences; 8. Transcript of the proceedings in the Local Court on 8 July 2022; and 9. Transcript of the proceedings and judgment in the District Court on 14 December 2022.
The email instituting this application was in the following terms: "To whom it may concern, My name is Serge Zhura, I'm submitting a cover letter to the Supreme Court for both my sentence and conviction to be reviewed under pursuant to s78 of the Crimes (Appeal and Review) Act 2001. I'm after the application of section 14 mental health and time served to be deducted from the application. I have attached supporting documents and below I have listed the events that have occurred and reasons why. … ● I was under high duress for a long time from my old business, covid lockdowns in 2021 and not able to find a job for 4 months, spent all my savings, then had a high pressure job at Rockdale Mazda. I left that [job] in January 2022, then in March 2022 I had a fall out with a best friend of 12 years, then one week later separated from my wife and we had a child. ● I found a new part time job but wasn't enough to pay all the bills being on a single income and I had days I couldn't feed [myself]. ● I am diagnosed with ADHD with anxiety, I also developed depression and PTSD ● I also had suicidal [thoughts] ● The night my ex [w]ife was moving out, her parents [were] helping and I didn't want to be around, so I went out to the Ivy in Sydney CBD, the mental state I was in, I didn't know what I was doing, I started drinking in excess and have no memory of any of the offences caused, this happened on 20 March 2022 ● I started to develop regular panic attacks to a point that caused a relapse and re offended on 1st May 2022 and again no memory of what happened due to my mental incapacity and not being in control of my actions. ● I am voluntarily seeing a [psychiatrist], have called beyond blue, had to increase my medication. ● I have found as some of the medication, most likely specific brands was causing the [symptoms] to worsen, see attached list of symptoms. I had to reduce and change medication. I believe that [was] a big contributing factor to the re offence ● I was devastated that the local court didn't approve the application as someone with no history prior and good character references, see attached. That the magistrate could not see that in the mental state I was in, was not normal actions and I was not aware of right or wrong at the time. ● When the matter was listed for the appeal at the District Court as much as the Magistrate, down graded my first set of charges, [s]he didn't even look at the 2nd set of charges because of the re offence, I was appalled by that as I almost committed suicide on the 2nd re-offence and new evidence of my worsening symptoms from my GP was entered as annex A, so there was the new submitted evidence was not considered. ● Again a conviction [weighs heavier] on a person with mental issues, I did the right thing by pleading guilty, so not putting the victims through the trial. I spent $1700 for the report from Dr. [Borenstein] outlining my life events, in hope of section 14 approved and despite me doing the right thing after, I still didn't get the desired result. ● I'm now a much better person and in a better mental state. I have launched a new life coach business to help other people that where in deep dark situations and help them become better. ● I also believe there was a bit of [miscommunication] with my solicitor at the time. [Therefore] I decided to do this myself, as only I can tell my story the way it was. ● This was the worst point in my life, that took me to hell and back, it would be great to not have a conviction or not show up on any searched criminal history if I apply for jobs in the future. I want to forget the year 2022 and not have a constant reminder of the worst period in my life hanging over my head with a record. Kind regards Serge Zhura"

[2]

The statutory framework and some authorities describing the nature of the jurisdiction

Part 7 of the CAR Act (ss 74-97) provides a form of review in criminal cases which lies outside of, or adjacent to, the ordinary appellate processes available to litigants who are aggrieved or dissatisfied with the outcome of their criminal cases. The key sections for present purposes are ss 78 and 79 which provide: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister. … 79 Consideration of applications (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if - (a) it appears that the matter - (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) The Supreme Court may defer consideration of an application under section 78 if - (a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or (b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or (c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered. (3B) This section does not authorise a direction to be given, or a referral to be made to the Court of Criminal Appeal, if the Supreme Court is satisfied that the grounds for the direction or referral arise only from - (a) the fact that the convicted person was - (i) questioned under section 24 of the Crime Commission Act 2012, or (ii) required under section 24 or 29 of that Act to produce a document or thing, or (b) either or both of the following - (i) evidence obtained directly from that questioning or requirement, (ii) any further information, evidence, document or thing obtained as a result of the questioning or the production of the document or thing. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).
The purpose of the legislation is to "overcome injustices that sometimes arise in the course of the criminal justice system": see, for example, Application by Pavel Svanda under Part 7, s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1061 at [5] and GIBSON, Scott - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577 at [7].
In the Application by Brian Steer under Part 7 of the Crimes (Appeal and Review) Act 2001 [2020] NSWSC 623 (at [12]) I discussed the jurisdiction of the Court when exercising its powers under Pt 7 of the CAR Act: "The jurisdiction of this Court in exercising the powers conferred by ss 78-79 is of an administrative and not judicial nature. The Attorney General (or respondent) in this application noted that the 'sparing' exercise of those powers is 'consistent with the principle of finality'. However, the provisions provide an important safeguard against wrongful convictions and, if the statutory requirement in s 79(2) is satisfied, the power should be exercised. It has been held that the test in s 79(2) is not a demanding one."
I also considered the operation of Pt 7 in the Application by Roger Cheney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (No 1) [2015] NSWSC 291 at [18]-[22]: "It was said In Varley (at 48) that in deciding to initiate an inquiry: 'a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry.' This element of doubt was discussed in R v Garry Andrew Bayliss [2001] NSWSC 732; 124 A Crim R 362 at [3] as: '3. Put simply, the question for the judge is whether the material which has been put forward in connection with the application causes the judge unease or a sense of disquiet about allowing the relevant conviction(s) to stand.' The test was adopted by Johnson J in Holland at [6]: '6. The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48;Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].' Beech Jones J analysed the development of this test in SKAF, Bilal - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 at [21; 24]: '21.… the test to be applied in proceedings of this nature is whether it appears that there is a doubt or question as to the applicant's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case (s 79(2)). Under the now-repealed, but similarly phrased s 475 of the Crimes Act 1900, it was said that the requisite view may be formed where the material submitted causes the person considering the matter 'unease or a sense of disquiet' in allowing the conviction or sentence to stand (Holland at [6], citing Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245). This requires available material which 'as a matter of practical reality' gives rise to the sense of unease or disquiet (Holland at [8]). That formula has been applied in applications made under s 79(2) (Holland at [6]). … 24. Further, I note that s 79(2) of the Review Act refers not only to a doubt or question about the convicted person's guilt but also 'as to any part of the evidence in the case'. It is possible for there to be a doubt or question about such evidence even if there is no doubt or question about the convicted person's guilt (Varley at 46 per Hope JA; Eastman [2003] HCA 28; 214 CLR 318 at [123] per Heydon J). The example given in Varley concerned the ordering of an inquiry to redress unjustified attacks on a particular Crown witness. However in this case I would not exercise the power conferred by s 79(1) to either order an inquiry or refer the matter to the Court of Criminal Appeal unless any question or doubt that might be raised about the evidence or part of it against Bilal Skaf was such as to give rise to 'unease or [a] sense of disquiet' about his convictions.' Finally, as noted by Johnson J in Holland at [9]: 'The procedure under s.78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.'"
In the case of GIBSON, Scott - Application under Part 7 Crimes (Appeal and Review) Act 2001 [2022] NSWSC 1577, Yehia J, having reviewed the authorities, provided a typically helpful summary at [13]: "1. In determining the application, the Court is exercising an administrative power; 2. The Court is not hearing an appeal against the applicant's conviction; 3. The legislation is designed to overcome injustices that sometimes arise in the course of the administration of criminal justice; 4. The legislation has a beneficial purpose; 5. The scope of the administrative function is determined by the relevant provisions set out in s 79(2) of the Crimes (Appeal and Review) Act; and 6. Action under s 79(1) (being either to direct that an inquiry be conducted, or for the whole case to be referred to the Court of Criminal Appeal), may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case, or as to any part of the evidence in the case: s 79(2)."
In Li v Attorney General for New South Wales [2018] NSWSC 674 at [15], Harrison J (as his Honour then was) said that "[t]he statutory language is not whether there is a doubt or question, but whether there appears to be a doubt or question" and that "[t]he Court does not need to be satisfied that a doubt or question is well founded to order an inquiry, as that is a matter for the inquiry" (emphasis in the original). The decision in that case was challenged in an application for judicial review to the Court of Appeal: Li v Attorney General for New South Wales (2019) 99 NSWLR 603; [2019] NSWCA 95. A majority (Basten and White JJA, Brereton JA dissenting) held the application must be refused. While there was some criticism of his Honour's reasons, particularly of the unattributed reproduction of the parties' submissions, there was no doubting the propositions referred to in the first sentence of this paragraph.
In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich") Basten JA at [65] criticised the language used in some of the cases and in particular the language or test requiring the judge to feel a sense of "unease or disquiet", observing authoritatively that "[t]his language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question.'"
A doubt or question as to a person's guilt "could involve a doubt or question as to the procedural steps in the trial, admission of evidence, rejection of evidence, weight of the evidence, directions to the jury or any other matter upon which a finding of guilt is dependent". In regard to a person's sentence, the term "mitigating circumstances" under s 79(2) means that a "doubt or question" could involve any procedural error which "gave rise to a more severe sentence than should properly have been imposed" or "circumstances that have the potential to lower a convicted person's sentence": Sinkovich at [27], [31], see also Buttrose v Attorney General of NSW (2015) 324 ALR 546; [2015] NSWCA 221 at [36] and Clark v Attorney General of New South Wales [2020] NSWCA 70 ("Clark") at [45].
The power to refuse to deal with the matter under s 79(3) does not require the Court to be satisfied that every argument or ground raised by the applicant has been dealt with previously: Clark at [46]-[47]. In GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179 McCallum JA stated at [143]: "… I do not think s 79(3) is to be construed as being subject to a limitation requiring the court to consider and address any application based on new evidence that contradicts or undermines other evidence in the case. The discretion not to consider an application (beyond considering it to the extent necessary to form a view as to whether to exercise the discretion under s 79(3) calls for an evaluative assessment which will ultimately be guided by fairness."
In light of the authorities, I must determine Mr Zhura's application in accordance with the statutory language of ss 79(2) and 79(3). I must decide whether there appears to be a "doubt or question" as to Mr Zhura's guilt or sentence and, antecedent to that issue, whether it is appropriate to exercise the discretion to decline to deal with the application.

[10]

Section 14 application in the Local Court

Mr Zhura appeared without legal representation before Magistrate Swain in the Downing Centre Local Court on 8 July 2022 after pleading guilty to the offences before the Registrar. He submitted that he should be dealt with under s 14 of the MHCIFP Act. To support his application, he tendered a report from psychologist Mr Sam Borenstein, a medical certificate from psychiatrist Dr Matthew Davies and two-character references from his ex-wife Rachael Zhura and brother Antony Zhuravlyov.
Mr Zhura submitted that he had gone through "a really rough period in [his] life" and had a "mental health impairment" when he committed the offences. He explained that at the time of the offences his mental health had declined due to the COVID-19 lockdowns, his separation from his wife, falling into debt, falling out with a friend, the war in his home country (Ukraine) and being unable to find employment. He apologised to the Court for his behaviour and stated that the offences were a "bad mistake" that occurred at a "bad time in [his] life" and "because of [his] mental health impairment … some things … were out of [his] control." He relied on his lack of a criminal record and said he had "changed" and "shown improvement"; he had stopped drinking, was exercising, had made new friends and was regularly seeing a psychologist and a psychiatrist. He explained that prior to the offences he had not engaged with treatment for his mental health issues, however, since the offences he has been taking prescribed attention deficit hyperactivity disorder ("ADHD") and anti-depressant medication which had improved his mental state. He said that he wanted to rebuild his life and was planning to go back to work, continue his treatment and study cybersecurity.
Mr Zhura said that he could not remember "everything that happened" due to the effects of alcohol and was "not thinking" because of his ADHD. He was advised by his former solicitor that the objective seriousness of the sexual touching offences was low because he only placed his hand on the outside of the victims' clothes and did not touch their skin.
As to the 20 March 2022 offences, Mr Zhura submitted that "no-one was injured" and "no-one was punched". He said it was "vague" as to how tightly he grabbed the victims, he had danced with one victim with their consent and that one charge was a case of "mistaken identity" as he had left the dance floor. He remembered complying with the security guards request to leave the premises, but the guards grabbed him when he refused to provide his licence. His next memory was being on the ground and going home with bruises and a black eye. He submitted that the security guards "abused their power" and, as a result, he was in "fight or flight mode" when the police arrived.
In relation to the offences committed on 1 May 2022, Mr Zhura submitted that he was feeling "suicidal a few days before" and did not know how he "ended up in the city". He said he was attacked by the security guards, and he fought them because he was "angry" that they were "abusing their power". He said that the guards used their knees to pin down his back, his stomach was on the ground and he could not breath.
The prosecution opposed the application and submitted that, despite Mr Zhura having a mental health impairment, his offences should be dealt with "according to law" due to the "nature and seriousness of the offending". The Prosecutor argued that the objective seriousness of the offending was towards the "mid-range" because he had committed several offences on two different days which resulted "in him being dragged out of the premises". The second incident involved him assaulting security guards while employing racial slurs.
As to the March offences, the Prosecutor submitted the sexual touching and common assault offences were serious as they involved Mr Zhura grabbing the buttocks of two women. However, he noted that Mr Zhura's wife had moved out of their home earlier that day and, at the time, he was under the influence of alcohol, which may explain his offending behaviour. The Prosecutor conceded that the offence of resisting police was towards the lower end of objective seriousness.
The Prosecutor submitted the May offences were serious and aggravated by the fact that Mr Zhura was on bail which he entered only six weeks earlier for very similar offences. He agreed it was not clear whether Mr Zhura was under the influence of alcohol.
The Prosecutor argued that the sexual touching offences were in the "mid-range" of objective seriousness because Mr Zhura had approached the victims and grabbed and squeezed their buttocks for a length of time. Similarly, he noted in one instance the victim's friends had to break Mr Zhura's grip because he was holding onto the victim tightly. He said it was "very concerning behaviour and much more towards the mid-range than any low-range type of behaviour" because "[t]hese [were] proper gropes to these young women on two different occasions, multiple times on each occasion".
The Prosecutor argued that there was a concern Mr Zhura would not comply with a treatment plan and would re-offend, because he committed the offences despite being treated for anxiety and ADHD for the past ten years. He repeated that alcohol played "a major role" in the offending and submitted general and specific deterrence should be taken into account, especially since Mr Zhura committed the second set of offences whilst he was on bail.

[12]

The submissions on sentence before Magistrate Swain

After dismissing the application under s 14, Magistrate Swain LCM proceeded to hear submissions on sentence.
The Prosecutor submitted that the sentence should involve a level of "[g]eneral deterrence and specific deterrence" because the offending involved "multiple types of [offences] over a short period of time". He submitted Mr Zhura had shown a "lack of remorse" during the s 14 hearing and that he was not "apologetic towards [the] poor women that [he] groped at the club or the people that [he] punched". He submitted that Mr Zhura tried to minimise his behaviour by saying that he touched the victims on the outside of their clothes, when in fact he had groped them with significant force that required him to be pulled away. However, the Prosecutor agreed with Swain LCM, that Mr Zhura had shown a degree of remorse in the psychologist's report and in pleading guilty to the offences. The Prosecutor contended that while Mr Zhura was going through a difficult time, the sentence still required a level of denunciation because his offending was fuelled by alcohol. The sentence also needed to protect the community because he had displayed a capacity to behave recklessly when under the influence of alcohol or when his mental health issues were triggered. He submitted the Court should make orders ensuring Mr Zhura continued his treatment for a certain period of time, and to help him to remain "a functioning member of society".
At the conclusion of the s 14 judgment, the transcript records Mr Zhura as saying: "Obviously, there's no s 10 - s 10 is not possible? Section 10."
I take this to be a submission that no conviction should be recorded, either by a dismissal of the charges or upon the applicant's conditional discharge: Crimes (Sentencing Procedure) Act 1999 ("Sentencing Act") s 10. Mr Zhura had received legal advice but was not legally represented.
He went on to tell the Magistrate that he was "apologetic", he had apologised to the Court and in the psychologist report he had shown remorse. He said "[i]f I had a daughter, I would not like if someone had done that". He recognised that alcohol was a factor in his offending but said it was his ADHD and mental illnesses which led him to drink and commit the offences. He repeated that his former solicitor had advised him that the objective seriousness of his offences was low because he had only touched the victims on the outside of their clothes.
Mr Zhura submitted that he had complied with strict bail conditions and had not reoffended. He said the reason he went to the clubs is because he had a falling out with a friend and had no place to go. He stated that the increase in his medication had significantly improved his mental health and he noted he had not relapsed since the offences.

[13]

The sentencing judgment

Swain LCM held that the offences committed by Mr Zhura on 20 March 2022 were "serious" and the sexual touching offence in particular fell "close to the mid-range of seriousness". Her Honour found that the offences committed on 1 May 2022 were aggravated because they were committed while he was on bail. She held that the sexual touching offence fell "short of the mid-range of seriousness", the assault committed on Mr Abrahimi fell in the "mid-range of seriousness" because he was punched in the facial region, and the assault on Mr Madon fell within "the lower end of [objective] seriousness" because Mr Zhura had only attempted to kick the victim.
Her Honour said the female victims of the sexual touching and common assault offences were entitled to be on the dancefloor, and it was "inappropriate and illegal" for Mr Zhura to grab them on the buttocks as they were dancing. She took into account the effects of the offending on the victims of the offences.
Magistrate Swain noted that Mr Zhura pleaded guilty at "an early stage in these proceedings" and made admissions to the commission of the offences. She found there was utilitarian value in his plea because of the saving of court time, and also that his plea relieved the victims of the stress of giving evidence. She took into account that he suffered from a mental condition and committed the offences "at a time of great stress" in his life. She found his prospects of rehabilitation were "significant" and that Mr Zhura had organised treatment voluntarily and that the treatment was effective in improving his mental health and coping skills.
Her Honour took into account that Mr Zhura was in his 30s, his marriage had dissolved, he lived apart from his wife, and he was not able to work because of his mental health condition but was hoping to resume employment in the future. She took into account the psychological report and his psychologist's recommendation that he continue his treatment.
Her Honour held the convictions were warranted in relation to each of the offences because of their seriousness. She found that Mr Zhura needed to be personally deterred from committing similar offences and he was an example to others that "no matter the personal circumstances … [it is] never right to conduct oneself on the dancefloor and sexually touch other people" and that his "behaviour is not condoned and will have punishment which follows".

[15]

Submissions on the severity appeal

It was submitted that Mr Zhura had struggled with mental health issues since he was 22 years old. At the time of the offending, he had experienced a recurrence and exacerbation of the symptoms of depression, anxiety and panic, which led him to commit the offences. He said "things [had] gotten a lot worse for him" because of the COVID-19 pandemic, which resulted in the breakdown of his relationship and separation from his wife.
He emphasised the opinion given by his psychologist that "he [had] experienced severe depression and loneliness and indeed [had] risen to the level of suicidal ideation" and that this demonstrated the gravity of the symptoms he had been experiencing at the time. He said he went to the club and turned to alcohol to manage his anxiety and panic. He became "very inebriated" and "out of control" which resulted in the commission of the offences. He said his ADHD resulted in him struggling to control his impulses when he was in the club.
The solicitor made some ambitious - perhaps misguided and inappropriate - submissions as to the reasonableness of Mr Zhura's "reckless" conduct in committing the sexual touching offences. These submissions were based on the place and circumstances in which the offences occurred. While the solicitor, who is not a beginner, said he would not want to be "misheard" on the issue and emphasised the obvious fact that any "young lady" has "a right to be out in these clubs and do what they want to do and behave as they wish", he went on to submit that such venues are "sexually charged arenas". He said they were places where "people go to meet other people". He sought to draw a contrast between a man groping a woman on a dancefloor and doing so on a train or at the Woolworth on a Sunday morning. The lawyer argued, while he "struggle[d] with the choice of words to describe this", that "[i]t is the sort of contact people do make in those clubs and in many other circumstances would have been consented to." This led to a submission that Mr Zhura's recklessness as to consent was "less unreasonable" in the context of him being on a dancefloor in a nightclub.
It must be emphasised that the facts were that Mr Zhura laid his hands on women with whom he had no previous conduct. He had not spoken to any of the three women he chose to grope and had not been dancing with them. Their first contact was when he touched them from behind. It is probably unnecessary to say this, but I will add that where an advocate struggles to find the words to make a submission such as this, it may be a strong indication that the submission ought not to be made at all. I also emphasise that nothing in the submissions made by Mr Zhura orally to the Magistrate, or in writing to this Court, even hinted that the venue in which these incidents occurred provided any justification or mitigation whatsoever.
The solicitor appearing before Judge Flannery made some more effective submissions in arguing that the sexual touching offences were in the "lower end of the range" of objective seriousness. The sexual contact was for a "very short period of time", involved touching over or above the victims' clothing, and immediately stopped once the victims protested. (The last part of that submission was not entirely consistent with the need for the victim's friends to intervene.) The parts of the body that he touched were not the most intimate; there was no touching near or on the breasts or genital area of any of the three women.
In relation to the common assault offence committed on 20 March, the solicitor noted it involved conduct similar to the sexual touching offences and asked her Honour to make similar findings and take into account similar matters when assessing the objective seriousness. He also submitted that her Honour would find that it was "a much less serious offence in general".
Mr Zhura recognised his conduct towards the security guards was "very inappropriate". However, it was submitted that the conduct involved "fairly low level violence", there were no injuries and he had only struck the security guards because he panicked and overreacted. The solicitor submitted that the "resist" offence was not the most serious type of offence as it did not involve a long running or violent attempt to resist the police.
He submitted that the failure to leave the premises should be dealt under s 10A of the Sentencing Act (conviction with no further penalty).
The solicitor relied on a number of subjective factors which mitigated the seriousness of the offending and militated in favour of leniency. This included Mr Zhura's long-standing mental health issues, his early pleas of guilty, his lack of criminal history, his prior good behaviour in the community and his expression of remorse. It was submitted there is "a very clear nexus" between his offending, his mental health issues and the life stressors he was facing at the time. He submitted that her Honour could be optimistic that Mr Zhura would not reoffend, that his client recognised his conduct was wrong, and that he was undertaking treatment and was engaging with mental health professionals.
Ultimately, it was submitted that Mr Zhura was entitled to "significant leniency" and the matters should be dealt without the recording of a conviction or, in the alternative, by way of a conditional release order. He told the Court Mr Zhura was "incredibly determined" to deal with his issues and would "do everything within his power to ensure that he does not trouble [the] Court again".
The Prosecutor submitted that the offences were in the "midrange for objective seriousness" and it was irrelevant to consider where the conduct occurred, as the conduct was "public", "unwanted", "uninvited", had clear "sexual overtones" and was committed without the victims' consent. The Prosecutor noted that Mr Zhura committed the May offences while being on bail for the same type of offending. She submitted general and specific deterrence were significant and it would be inappropriate for the offender not to be subject to a conviction.
The Prosecutor stated that Swain LCM had "clearly considered" the sentences imposed and had imposed a community correction order to ensure Mr Zhura remained engaged with a psychologist or psychiatrist. This demonstrated that her Honour had taken into account the subjective features and background of his offending.

[17]

Medical and psychological reports

Mr Zhura provided a medical certificate written by his general practitioner Dr Carl Allen, that was tendered on the hearing of the District Court appeal. He also provided a letter from his psychiatrist Dr Matthew Davies and report of the psychologist Mr Sam Borenstein, each of which was tendered in the Local Court.
Dr Allen's certificate confirmed Mr Zhura had been receiving treatment for depression since February 2022. He noted he had been experiencing dizziness, sensory disturbance, insomnia, agitation, anxiety, sweating and confusion. The letter from Dr Davies confirmed Mr Zhura had been seeing a psychiatrist every 6 months since February 2021 and had been diagnosed with ADHD since July 2020.
Mr Borenstein interviewed Mr Zhura on the 14 June 2022 via audio visual link and had regard to the charges, facts sheets and his criminal history. He administered a variety of cognitive tests which established Mr Zhura had emotional and behavioural problems of clinical significance. Mr Zhura presented with symptoms of depression, stress and anxiety and confirmed his diagnosis of ADHD. Mr Borenstein diagnosed the applicant with major depression (recurrent type), generalised anxiety disorder with panic features, adult attention-deficit disorder ("ADD") and ADHD. His opinion was that Mr Zhura "was suffering a mental health impairment leading up to and at the time of the subject offence" which "impaired his emotional wellbeing, judgement and behavioural choices" and that there was a "direct connection between Mr Zhura's mental health impairment [and] the offending behaviour".
Mr Borenstein reported that Mr Zhura has been seeing a psychiatrist and taking medication for ADD, ADHD and depression for two years. He first saw a psychologist when he was 22 for anxiety and panic and has engaged regularly with a psychologist since 2020. He recommended that he follow a treatment plan for 12 months, continue to engage with his psychologist and psychiatrist and participate in pharmacotherapy and alcohol relapse prevention.
The psychologist noted that Mr Zhura was born in Ukraine and moved to Australia with his mother, father and younger brother when he was eight. He had a poor relationship with his father growing up and was bullied throughout school. He left school in year 11 and commenced an apprenticeship as an automotive mechanic when he was 20. He was married for six years and has one son. Mr Zhura had an automotive business and said that during the COVID-19 pandemic he could not find work, was "stuck in a two bedroom unit" with his family and that "it was like a pressure cooker". He was forced to sell his business to support his family during the pandemic. He began drinking more and told Mr Borenstein that his life was "going downhill". He felt "increasingly isolated" as he had a falling out with a friend and felt unsupported by his father.
The report also noted that when Mr Zhura's wife ended their marriage, his "symptoms of depression, anxiety and panic worsened". He found a job at a car dealership but left the job after three months when he experienced panic attacks and ADD. He was assessed as medically unfit for work in February 2022. He told Mr Borenstein that on the day of the offences he went to the club because he had "nowhere to go" and because his "wife was packing up and [he] couldn't be there". He said that he had been experiencing symptoms of ADD/ADHD and was struggling with depression, loneliness and suicidal ideation at the time of the offences. He said that he consumed up to 15 drinks, had little memory of the offending behaviour and he expressed "guilt, remorse and contrition" for his behaviour.

[20]

Mr Zhura's submissions

Mr Zhura seeks a review of both his convictions and sentences under s 78 of the CAR Act. I have already reproduced the whole of his submission earlier in this judgment at [6].
Mr Zhura submitted that that the March offences were preceded by several significant and stressful life events, including his separation from his wife (with whom he has a child with), the falling out with his best friend, the COVID-19 lockdowns, financial stressors and employment difficulties. This was coupled with several mental health issues, including ADHD, anxiety, depression, suicidal thoughts and post-traumatic stress disorder ("PTSD"). He submitted that he was not in control of his actions, and he does not recall the offences.
Since the offending, he has voluntarily sought professional help, adjusted his medication, launched a life coaching business to help others and submitted he is "now a much better person and in a better mental state". He wrote that: "This was the worst point in my life, that took me to hell and back, it would be great not to have a conviction or show up on any searched criminal history if I apply for jobs in the future. I want to forget the year 2022 and not have a constant reminder of the worst period of my life hanging over my head with a record."
The lawyer for the Crown Solicitor's Office, appearing for the Attorney General synthesised the "grounds" relied on by Mr Zhura: 1. Mr Zhura was experiencing a period of "high duress" at the time of the offences from personal circumstances. 2. Mr Zhura was diagnosed with several mental health issues including ADHD, anxiety, depression and PTSD and was not in control of his actions at the time of the offending. The side effects of his medication contributed to his offending, and this was evidenced by Dr Allen's medical certificate. He has since sought professional treatment and is now in a better mental state. 3. Mr Zhura pleaded guilty and there was a utilitarian value in the plea. 4. The District Court Judge did not consider the second set of offences on appeal. 5. There was miscommunication with his solicitor at the time of the appeal. 6. Mr Zhura does not want his convictions to appear on his criminal record for employment purposes.

[22]

Grounds 1 and 2: Period of high duress and mental health impairment

The Attorney submitted that Magistrate Swain correctly applied the test under s 14 of the MHCIFP Act. The act provides a diversionary scheme for defendants with mental health or cognitive impairments: 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if-- (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons-- (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. … 12 Defendants with mental health impairments or cognitive impairments (1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both. (2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law. (3) This Division does not apply if the defendant is a mentally ill person or a mentally disordered person. … 14 Orders Magistrate may make (1) A Magistrate may make an order to dismiss a charge and discharge the defendant-- (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or (c) unconditionally. (2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise. … 15 Considerations of Magistrate when making order In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following-- (a) the nature of the defendant's apparent mental health impairment or cognitive impairment, (b) the nature, seriousness and circumstances of the alleged offence, (c) the suitability of the sentencing options available if the defendant is found guilty of the offence, (d) relevant changes in the circumstances of the defendant since the alleged commission of the offence, (e) the defendant's criminal history, (f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990, (g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan, (h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public, (i) other relevant factors.
The Attorney summarised the three staged test that should be applied under s 14 of the MHCIFP Act: [3] 1. The magistrate must first determine whether the defendant comes within the definition under s 12; 2. The magistrate must then determine whether the defendant should be dealt with, as a matter of discretion, in accordance with Div 2 of the MHCIFP rather than according to law. This requires the magistrate to balance "the purposes of punishment and the public interest in diverting a mentally disordered offender from the criminal justice system" [4] ; and 3. Once it is determined that it is more appropriate to deal with the defendant in accordance with s 12, the Magistrate must decide whether the action set out in s 14 should be taken.
The Attorney submitted that Swain LCM exercised her discretion under s 14 correctly. Her Honour accepted the psychologist's opinion that Mr Zhura had a mental health impairment pursuant to s 4(1) of the MHCIFP Act and that he suffered from depression, anxiety and ADD/ADHD. Her Honour was therefore satisfied of the first limb of the test. Under the second limb, Swain LCM "considered at length" the factors in s 15 including Mr Zhura's mental health and personal circumstances at the time of the offences. It was submitted it was open and necessary for her Honour to take into account the seriousness of his offending and that he committed the May offences while on bail. Accordingly, it was submitted that her Honour's determination that it was more appropriate to deal with his offences according to law, complied with the requirements of s 14 of the MHCIFP Act.
The Attorney reminded the Court that Mr Zhura chose not to pursue the s 14 application in the District Court.
The Attorney submitted that it was unclear whether the side effects of Mr Zhura's medication, referred to in Dr Allen's medical certificate, had any connection with the offending conduct. However, Magistrate Swain found that his mental illness itself was connected to the offending and, therefore, the additional evidence would not affect or change the finding of the Magistrate.
As to that last submission, I should note that the question for this Court is not whether the evidence may have changed the finding of the Magistrate, but whether there is a doubt or question about the convictions which, in the context of this case, equates to the question of whether the matter should have, or should now be, dealt with under s 14 or, perhaps more correctly, whether there was some flaw or error in the process by which the Magistrate reached her decision.

[27]

Refusal to deal with the matters under s 79(3)

There is considerable force in the Attorney General's submission that the Court should exercise its discretion not to deal with this application. It is quite clear that most of the matters raised in this Court - and all of the matters of any substance - were dealt with by Magistrate Swain. Further, the arguments and evidence now relied on, with the exception of the application under s 14 of the MHCIFP Act, were considered carefully on appeal by Judge Flannery. There is no new evidence and the additional arguments do not advance the fundamental issues to a great extent.
However, a decision "to refuse to consider" an application of this kind is a discretionary matter. Section 79(3) provides that this Court "may refuse" to consider the application if certain (alternative) prerequisites in the sub-paragraph exist. The section is set out in full in [8] above.
In this case, sub-paragraph 79(3)(a)(i) is arguably satisfied - it seems the issues raised have been "fully dealt with" in the criminal proceedings in the Local Court.
In relation to the "conviction appeal" to the District Court, that is the contention that the matters should have been "diverted" pursuant to s 14 of the MHCIFP Act, there was an avenue of appeal but it was not pursued: s 79(3)(a)(iii). More correctly the appeal was abandoned or withdrawn.
If it was not always apparent, it is now established clearly that an appeal to the District Court against a refusal by a magistrate to divert an offender under the relevant mental health regime is to be conducted as an appeal against conviction and not as a severity appeal: see Huynh v R (2021) 105 NSWLR 384; [2021] NSWCCA 148 at [29]-[33], Khoury v R (No 1) [2021] NSWDC 434 and Preston v R [2023] NSWDC 362.
In the present case, the notice of appeal to the District Court said: "I am appealing on the following grounds: The penalties are too severe. I am appealing the decision in the Local Court [not to] grant a s 14 application."
Accordingly, Judge Flannery was seized of jurisdiction to treat this as a conviction (or "all grounds") appeal. However, the solicitor then acting for Mr Zhura told her Honour: "Mr Zhura now wishes to pursue only the severity appeal, the severity of sentence rather than the s 14 application itself …"
In the circumstances of the present case and the present application, I would not take the approach of denying Mr Zhura the opportunity to ventilate this issue because of the withdrawal of that part of the appeal: contra Application by Paul Scott Howes pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2023] NSWSC 418 at [120]-[122], [130]. There is no criticism of his solicitor intended, but Mr Zhura said in his email instituting this review that there was a "[miscommunication] with my solicitor at the time". While the Attorney General is correct to say that this is a very vague assertion, I am prepared to act on an assumption that it relates to the withdrawal of that part of the District Court appeal which sought to impeach the refusal of Magistrate Swain to deal with the matters under s 14. Rather than embarking on a collateral inquiry as to who said what to whom in the course of the conference that occurred after the matter was first mentioned before Judge Flannery, the better course is to deal with the case on its merits.
On the other hand, as I have said, the decision to refuse to consider the application is a discretionary one.
Further, the suggestion by a self-represented litigant, who has no previous criminal convictions and undisputed psychological issues, that there was a "miscommunication" between him and his solicitor in the District Court should be considered. In the peculiar circumstances of this case, I am prepared to accept that this contention - despite the absence of detail and the vagueness of the assertion - constitutes a special fact or circumstance warranting further action: s 79(3)(b).
For those reasons, I have concluded that I should consider the application on its merits.

[28]

Is there a doubt or question as to Mr Zhura's conviction or sentence?

I have set out the evidence, facts and submissions in some detail above. I have also explained the nature of the jurisdiction and the authorities that have dealt with the administrative task the Court is now undertaking. It is unnecessary to provide extensive reasons for my conclusion on the merits of the application.
In short, it does not appear that there is any doubt or question as to Mr Zhura's guilt, any mitigating circumstance or any part of the evidence.
It may well be that if Mr Zhura's criminal conduct had ceased after his interaction with the first victim on the dancefloor at the Ivy, that a dismissal under s 14 of the MHCIFP Act may have been appropriate. Similarly, disposition under s 10 of the Sentencing Act (that is, to proceed without recording a conviction, either by dismissal or conditional discharge) may have been the correct outcome. However, the conduct did not stop there. Rather, the same behaviour was repeated a short time later with a different woman. Further, Mr Zhura then became involved in a physical dispute with the security guards at the Ivy.
Mr Zhura then entered a bail undertaking and breached that undertaking just a few weeks later when he conducted himself in an almost identical fashion at a different nightclub.
I have considered Mr Borenstein's report closely along with the brief reports of Dr Davies and Dr Allen. I have also taken into account the life stressors that were impacting on Mr Zhura at the time. While I must accept that these things were connected to the offending, and that the offending seemed to be entirely out of character, the repeated nature of the offending meant that any outcome which did not involve the recording of convictions would have been surprising.
I reject the applicant's suggestion that Judge Flannery did not "even look at the 2nd set of charges". The differences in outcome of the sentence appeal suggests the opposite. Her Honour quashed the community corrections orders for the first set of charges and replaced those orders with far less onerous conditional release orders. However, Judge Flannery declined to interfere with the community corrections orders for the second set of offences, and confirmed the penalties imposed by the Magistrate. She did this on the very sound basis that the second set of offences "were committed when [Mr Zhura] was on bail." Earlier in the judgment she had set out succinctly the facts of the second set of offences. I do not accept that her Honour was not, in reaching this decision, conscious of the deterioration in Mr Zhura's mental health.
I have also considered the impact of the convictions on Mr Zhura's future employment prospects. This matter does not appear to raise a doubt or question either about the convictions or the sentences.

Application by Serge Zhura pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2024] NSWSC 198

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (30 paragraphs)

Legislation Cited (6)

Cases Cited (24)