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[2026] NSWCCA 118
Court of Criminal Appeal (NSW)
2026-08-07
Bell CJ at [1] Dhanji J at [2] Sweeney J at [3]
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jamal Zahab v R [2026] NSWCCA 118
Hearing dates: 29 June 2026
Date of orders: 29 June 2026
Decision date: 07 August 2026
Before: Bell CJ at [1]
Dhanji J at [2]
Sweeney J at [3]
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the sentence imposed in the District Court and resentence Mr Zahab to a term of imprisonment of 3 years and 3 months with a non-parole period of 2 years and 2 months dating from 29 January 2025. The sentence will expire on 28 April 2028 and the non-parole period on 28 March 2027.
Catchwords: CRIME — Appeals — Appeal against sentence — Application of De Simoni and Josefski principles — Where the sentencing judge took into account co-offender’s possession and use of a firearm in sentencing Mr Zahab.
CRIME — Appeals — Appeal against sentence —Where the offender’s liability and culpability for the offence by reason of his conduct and role were not distinguished.
CRIME — Appeals — Appeal against sentence — Reduced moral culpability — Impact on purposes of sentencing.
CRIME — Appeals — Appeal against sentence — Where the sentencing judge took into account prior convictions that did not appear in the offender’s criminal history.
Legislation Cited: Crimes Act 1900 (NSW), ss 97(1),(2)
Cases Cited: 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
Texts Cited: Nil
Category: Principal judgment
Parties: Jamal Zahab (Applicant)
Rex (Respondent)
Representation: Counsel:
A Chhabra / R Kriesler (Applicant)
M Knowles (Respondent)
Solicitors:
Hearn Heathcote Solicitors (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2023/00131076
Publication restriction: Nil
BELL CJ: I agree with Sweeney J and with the additional comments of Dhanji J.
DHANJI J: I agree with Sweeney J. I would only add, in relation to Ground 1, I am inclined to the view that the principle engaged is that stated in Josefski v R [2010] NSWCCA 41; (2010) 217 A Crim R 183 (‘Josefski*’**)* rather than, as the applicant contended, the principle The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (‘De Simoni*’*). It is, however unnecessary to express a concluded view and it is preferable not to do so given the matter was not fully argued. What is important is that, in the present circumstances, as Sweeney J concludes, the presence of the firearm could not (and cannot now) be taken into account adversely to the applicant in his sentencing.
SWEENEY J: Jamal Zahab seeks leave to appeal against the sentence imposed upon him in the District Court on 26 September 2025. Mr Zahab pleaded guilty in that court to one offence of assault with intent to rob in company, contrary to s 97(1) Crimes Act 1900 (NSW) (‘the Act’), which has a maximum penalty of 20 years imprisonment. He was sentenced to imprisonment for 4 years and 3 months with a non-parole period of 2 years and 10 months, dating from 29 January 2025. That sentence incorporated a discount of 5% for Mr Zahab’s guilty plea.
Ground 1: the Sentencing Judge had regard to the use of a firearm by a co-offender in assessing the objective seriousness of the applicant’s offending, contrary to the principle in The Queen v De Simoni (1981) 147 CLR 383, in circumstances where the Crown had conceded it could not prove beyond reasonable doubt that the applicant had knowledge of the firearm or any other weapon.
Ground 2: the Sentencing Judge failed to distinguish between the applicant’s liability for the offence as a participant in the joint criminal enterprise and his moral culpability by reference to his specific role in that enterprise.
Ground 3: the Sentencing Judge, having accepted that the applicant’s moral culpability was reduced by reason of his background of childhood deprivation, failed to consider how that reduction bore on the weight to be given to the other purposes of sentencing.
Ground 4: was not pressed at the hearing of the appeal.
Ground 5: the Sentencing Judge took into account prior convictions for possession of firearms, assault with intent to rob, and robbery armed with a dangerous weapon, none of which appear in the applicant’s criminal history.
The Crown conceded that it would be open to the Court to find that Grounds 3 and 5 were made out. The Court accepted that concession, and will have to re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
Mr Zahab sought to rely on the matters raised in Ground 1 and 2 in the Court’s resentencing of him. Therefore it is necessary to recount how he propounded those matters, and the Court’s response to them.
All four grounds relied on by Mr Zahab have merit and will be taken into account in resentencing him.
Mr Zahab was sentenced on the basis of agreed facts, which in summary were as follows.
The victim, Justin Pham was the licensee of a hotel at Bankstown. On the day of the offence, 14 April 2023, Mr Pham began his shift at the hotel at 7 AM, and the hotel opened for trading at 9 AM. During the morning Mr Zahab and his co-offenders Nirmal Suman and Bilal Helou were seen at Mr Suman’s home at Bankstown, a three minute drive from the hotel. Mr Zahab and Mr Helou were seen walking down the driveway of Mr Suman’s home towards the road at 8:49 AM. At about 11:23 AM Mr Suman was picked up by a Range Rover Discovery outside his home. He sat in the front passenger seat. The vehicle was being driven by Mr Zahab.
At about 11:26 AM the Range Rover being driven by Mr Zahab stopped at the exit of the car park at the rear of the hotel. Mr Suman and Mr Helou got out of the vehicle at about 11:28 AM. They went into the hotel while Mr Zahab remained in the vehicle. When Mr Suman and Mr Helou went into the hotel Mr Zahab reversed the vehicle a short distance. As Mr Suman and Mr Helou entered the hotel two men doing renovation work on the hotel saw Mr Suman carrying what appeared to be a firearm. The agreed facts recorded that the Crown accepted that it could not prove beyond a reasonable doubt that Mr Zahab had knowledge of the fact that Mr Suman was carrying a firearm or any weapon whatsoever.
Mr Suman and Mr Helou approached Mr Pham from behind. He was standing in one of the hotel bars. One of them said “this is a hold-up. Go into the office.” CCTV footage from inside the hotel captured Mr Suman carrying what appeared to be a firearm. Mr Pham walked towards the office through another bar, followed by Mr Suman and Mr Helou. At the end of the bar he was pushed by Mr Suman. When Mr Pham was near the office door he stopped outside the office and tried to get away. Mr Helou took hold of him by the scruff of his neck and took a lanyard from around his neck which had the office keys on it. Mr Pham did not sustain any injuries from the assault by Mr Suman and Mr Helou. They told him “get into the office”. He said “you can access anything you want. Use the key.” He then backed away so as not to enter the office with Mr Suman and Mr Helou, as he was afraid he would be hurt by them if he did. As Mr Pham backed away Mr Helou accessed the office using the keys, while Mr Suman approached Mr Pham, raised and lowered the “supposed firearm” towards him and told him to go into the office.
Mr Pham heard what he thought sounded like a gunshot and jumped over the counter to run from the hotel. Later searches by forensic police did not find any material consistent with a gun being fired. Mr Pham ran out of the hotel and called police. In jumping over the bar he hurt his left knee and sustained some scratches on his right knee. The entire interaction with Mr Pham lasted approximately 1 minute and 22 seconds.
Immediately after Mr Pham fled, Mr Suman and Mr Helou left the hotel without taking anything. As they left the hotel they threw the keys at the feet of another staff member. As they returned to the vehicle Mr Helou was heard telling Mr Suman “put it away, put it away.” The Range Rover departed at about 11:30 AM. Shortly afterwards police arrived at the hotel. Mr Zahab drove the Range Rover to a car park at Punchbowl, an approximate five minute drive from the hotel. The three men left the Range Rover. They walked to Mr Helou’s home in Punchbowl, where they arrived at 11:39 AM. Mr Zahab and Mr Suman then walked to Mr Suman’s home, and Mr Zahab then continued to his home, where he arrived at 12:26 PM.
Mr Suman and Mr Helou had been previously sentenced by the same Judge, Judge O’Rourke SC, on the basis of agreed facts, which differed in some details from the facts agreed between the Crown and Mr Zahab for his sentence. Mr Suman and Mr Helou were each sentenced for an offence of assault with intent to rob while armed with a dangerous weapon, contrary to s 97(2) of the Act*,* which has a maximum penalty of 25 years imprisonment. Mr Suman was also sentenced for an offence of possessing an unauthorised firearm. They both pleaded guilty and received 25% discounts of their sentences for their pleas. Mr Suman was sentenced to an aggregate term of imprisonment of 6 years, 9 months, with an aggregate non-parole period of 4 years, 6 months. The indicative sentence for his offence of assault with intent to rob while armed with a dangerous weapon was 5 years and 4 months imprisonment. Mr Helou was sentenced to 4 years, 9 months imprisonment with a non-parole period of 3 years, 2 months.
“In relation to the assessment of any objective seriousness of the offence, relevant circumstances here is that the offender was aged 43 and is now 46. The victim was an employee of the hotel. The offender was in the company of two others. It occurred around 11.30am. The maximum penalty for the offence is 20 years. The Crown accepts it cannot prove beyond reasonable doubt that the offender knew the co-offenders had a firearm in their possession when they left the vehicle, but as submitted by the Crown, it would be entirely artificial exercise to simply ignore, particularly in a joint criminal enterprise, that a firearm was used upon the victim. But to be clear, this factor has very limited application in light of the Crown’s concession that they cannot prove he had knowledge of such.
The offender remained in the vehicle that conveyed the co-offenders to the hotel and reversed the vehicle after they exit it to enter the hotel. He then conveyed them from the scene after the attempt to rob and drives them all to Punchbowl. The vehicle itself was a stolen vehicle. Other citizens were present milling around, but this fact does not make the victim any less vulnerable as this factor is related to a particular class or vocation of victim. There was no amount of money stolen. There was some violence used, although relatively minor, the co-offender grabbing the victim by the scruff of the neck and taking the lanyard with the keys from him to prevent him from escaping. It was relatively unsophisticated. There must have been some planning involved, but I accept that this offender came into the enterprise not long before its commission.
The motivation, which is accepted from his evidence, was clearly financial to obtain some quick money in order to purchase drugs. The duration of the incident itself went for around one and a half minutes. I have also taken into account the victim impact statement. It was clearly a terrifying ordeal for him, and he notes that he continues to suffer psychologically. The Crown submitted the offence is of greater seriousness than the notional mid-range offence contemplated in Henry due to the offender’s age, criminal antecedents, the offence being committed in company, planning, and the vulnerability of the victim. In considering the features outlined earlier, I consider it sits around mid-range. It is a serious offence.”
“The offender gave evidence that he came into the enterprise late and, whilst aware it involved criminal activity, he did not realise, he said, it was a robbery at that time, but was prepared and willing to enter the enterprise as he needed funds to buy his next fix of heroin. If I was prepared to accept this evidence, there can be no doubt that by the time he drove the co-offenders to the hotel that they put on their gloves and covered their faces, and said, ‘We’ll be back.’ He certainly knew what was going on.”
“I have also had regard to the guideline judgment of R v Henry (1999) 46 NSWLR 346, for armed robbery offences, and the submissions of both parties on the guideline judgment. I have considered the relevant Henry factors when discussing the objective seriousness of the offence, the degree of participation of the offender in the offence and the offender’s subjective case. Many of the factors are present, but there are some differences. Here, the offender was 43 years of age, that is, not a young offender, and he has a significant criminal history.
He was with two co-offenders who were armed with a firearm, noting knowledge is not proven, which was raised and lowered in the direction of the victim, who was vulnerable, and even if not functional, would have terrified the victim. There was a degree of planning. He waited as a getaway driver. There was use of masks, sunglasses and a stolen car, and minimal violence, but the threat was real. No money was taken. There was a late plea of guilty.”
Her Honour took into account the following subjective circumstances of Mr Zahab, from his evidence in the sentence proceedings and a psychiatrist’s report. His father was physically abusive towards him, his mother and his siblings, almost daily. His father was murdered in horrific circumstances by his brother in a psychotic state.
He began consuming alcohol and cannabis at around the age of 13 and his use of both increased. He had used the drug “ecstasy” from the age of 15 until about 2019. He began using heroin at the age of 15 and injecting it at the age of 16.
He told the psychiatrist who assessed him in October 2022 that he had used heroin before the assessment. He was at the time of sentence using buprenorphine in custody, after several requests by him to participate in that program. He had funded his drug use through crime and drug dealing. He had a history of self-harm. He was diagnosed by the psychiatrist as suffering from persistent depressive disorder, complex post-traumatic stress disorder (PTSD), polysubstance use disorder and paranoid schizophrenia. He joined the offence as he needed funds to buy heroin. He had been sexually abused on three occasions by two officers in a juvenile detention centre, in respect of which he had commenced civil proceedings. He estimated that from his early 20s until the age of 43, at the time of the psychiatrist’s report, he had been in custody for over 50% of that time.
Her Honour found that Mr Zahab had expressed limited remorse. Her Honour took into account that as a result of his being in custody his government housing tenancy would be terminated.
Her Honour found that Mr Zahab’s dysfunctional background and significant mental health issues, in combination, reduced his moral culpability “to some extent”. Her Honour considered that Mr Zahab’s chronic history of drug use was not a mitigating factor and, with his “considerable criminal history, and a pattern of returning to crime after being released from custody” gave rise to a real risk of his reoffending, and that the time he had spent in custody in his adult life “for similar serious offending” had not deterred him from reoffending “in a similar vein”.
Her Honour said “In relation to general and specific deterrence, both have a significant role to play, noting the similar previous offending, specific deterrence here has some considerable work to do.”
Her Honour said that Mr Zahab had “a significant history of criminal convictions, with a history of serious traffic offending, drug offences, dishonesty offences, possess firearm offences, assault with intent to rob, and robbery armed with a dangerous weapon offence”. Her Honour noted that that record could arguably be an aggravating circumstance but took it into account as disentitling Mr Zahab to leniency.
Mr Zahab’s criminal history did not include any convictions for possessing firearms, assault with intent to rob or armed robbery. That was a mistake by her Honour, as the Crown acknowledged. Ground 5 which asserted this error is made out.
Mr Zahab’s record contained numerous driving offences, including several offences of driving while his licence was suspended or he was disqualified from holding a licence, and driving negligently, dangerously and in police pursuits. He had some drug offences, the most serious being manufacturing a prohibited drug in 2004 and supplying a drug in 2016. He had some dishonesty offences of stealing, having suspected stolen goods in his custody and obtaining money dishonestly. He had an offence in 2019 of demanding property by force in company with intent to steal and in 2020 of breaking and entering a house and destroying property which, with other offences, were the subject of an aggregate sentence of imprisonment imposed in 2021. That criminal record will be taken into account in resentencing Mr Zahab, as depriving him of the leniency which would be afforded to a person with little or no criminal history. It is consistent with his admitted history of drug use.
The issue in G****round 3, which the Crown conceded, was that her Honour, having found that Mr Zahab’s moral culpability was reduced, did not carry the effect of that finding through to her consideration of the purposes of sentencing, particularly specific and general deterrence. Counsel for Mr Zahab had made such a submission in supplementary written submissions to Judge O’Rourke SC. It is clear that if a sentencing judge finds an offender’s moral culpability reduced, the Judge is required to consider the impact of that finding on the various purposes of sentencing: N**K v R [2025] NSWCCA 73 per Yehia J, Ball JA and Fagan J agreeing) at [110] – [112]. Counsel for Mr Zahab accepted that in the resentencing of him general deterrence and specific deterrence have work to do, but the Court should consider the weight to be given to them.
In support of Ground 1 the applicant relied on the principle in De Simoni that a sentencing judge, while entitled to consider all of the conduct of the offender, including that which would aggravate the offence, cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. Counsel for Mr Zahab submitted that although Mr Zahab’s plea to the offence against s 97(1) of the Act was accepted on the express basis recorded in the agreed facts, that the Crown could not prove beyond reasonable doubt that Mr Zahab knew any co-offender was carrying a firearm or any weapon whatsoever, her Honour took the firearm in the co-offender’s possession into account in sentencing Mr Zahab.
Counsel referred to Judge O’Rourke SC’s statements that “it would be [an] entirely artificial exercise to simply ignore … that a firearm was used upon the victim. But to be clear, this factor has very limited application in light of the Crown’s concession that they cannot prove he had knowledge of such” and “He was with two co-offenders who were armed with a firearm, noting knowledge is not proven, which was raised and lowered in the direction of the victim, who was vulnerable, and even if not functional, would have terrified the victim”. He submitted they demonstrated that her Honour had regard to the firearm in sentencing Mr Zahab when her Honour ought not to have had regard to it at all.
The Crown’s position was that Judge O’Rourke SC did not take the firearm into account in sentencing Mr Zahab, but rather her reference to the firearm was part of the factual narrative and her statement that the firearm had “very limited application” was infelicitous.
The Court raised with counsel for Mr Zahab whether his lack of knowledge of his co-offender’s possession and use of the gun came within the De Simoni principle or was more appropriately considered in light of the principle, confirmed in Josefski*,* that a person cannot be sentenced for unintended, unforeseen and not reasonably foreseeable consequences of his conduct. Counsel was given leave to, and did, submit short supplementary written submissions. He submitted that Josefski and cases cited therein applied De Simoni. He submitted that Mr Zahab’s absence of knowledge of the firearm would necessarily mean that its use and the degree of threat or fear apprehended by the victim by the use of the gun by a co-offender were not reasonably foreseeable by Mr Zahab.
In the circumstances of this case the principle in D**e Simoni and the principle affirmed in Josefski overlap such that it was not appropriate for her Honour to take into account and give any weight to Mr Suman’s possession and use of the firearm in his assault of Mr Pham in sentencing Mr Zahab, and it is not a matter that this Court can take into account in resentencing Mr Zahab.
In support of Ground 2 counsel for the applicant submitted that Judge O’Rourke SC did not distinguish between Mr Zahab’s being liable for his offence by being a participant in a joint criminal enterprise and his culpability by reason of his own role and conduct: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49; York v R [2025] NSWCCA 81.
Counsel for Mr Zahab relied on the factors that his role was confined to driving the co-offenders to and from the hotel and he remained in the vehicle while they were in the hotel. He did not enter the hotel. He did not confront or see the victim and had no contact of any kind with the victim. He had no knowledge of his co-offender’s use of the firearm. He came into the enterprise late, not long before its commission. His motivation was to obtain money to buy heroin. Counsel submitted that her Honour did not consider or distinguish Mr Zahab’s culpability, that such consideration was absent from her Honour’s remarks on sentence.
The Crown submitted that her Honour sentenced Mr Zahab in a manner consistent with the agreed facts, that he was liable on the basis of a joint criminal enterprise but that his actual role in the enterprise was limited to his being the driver.
Her Honour did recite Mr Zahab’s conduct and role as a driver. However in her Honour’s assessment of the objective seriousness of the offence and in relation to the Henry guideline judgment her Honour appears to have blurred the conduct of Mr Zahab and the conduct of the co-offenders and not distinguished Mr Zahab’s liability for the offence from his culpability for his offence by reason of his conduct and role.
In resentencing Mr Zahab and taking into account his conduct and role as described above I assess his offence as below the mid-range of seriousness. In doing so I take into account that he decided quickly to drive his co-offenders, for payment, because he was sick and would be able to go to see his “dealer”. I take that into account noting that Wood CJ at CL said in Henry at [273] that the need to acquire funds to support a drug habit is not an excuse to commit a robbery or similar offence and of itself is not a matter of mitigation, but that an offence is motivated by such a need may be relevant to the objective criminality of an offence in that it may throw light on the impulsivity of the offence and the extent of any planning for it, it distinguishes the reason from a more serious reason for the offence, and being in a state of withdrawal may throw light on the offender’s state of mind or capacity to exercise judgment.
In resentencing Mr Zahab I have had regard to the material filed in the event of such. From that material I take into account that while in custody Mr Zahab has completed the EQUIPS Addiction course, anger management and victim awareness courses and two university subjects. I take into account from the Corrective Services Case Note Reports that Mr Zahab has worked in custody and that his mental health issues have caused him to self-harm in custody. He is described as behaving appropriately and respectfully toward staff while attending programs and work.
It appears that Mr Zahab’s mental health issues are being attended to by correctional staff but I take into account that his mental health is making his experience of custody more difficult.
I take into account that because of the time Mr Zahab has been in custody, since 19 February 2025, the government housing agency has taken steps to end his tenancy in government housing. Mr Zahab said that the loss of his social housing tenancy will mean that when he is released from custody he will have to return to his family home where he suffered abuse and where his father was murdered. The loss of his social housing is serious additional hardship suffered by the applicant as a result of the sentence imposed upon him which I take into account.
I take into account that he is taking buprenorphine in custody to remedy his former heroin dependence, which is positive for his rehabilitation.
I find, as Judge O’Rourke SC did, that Mr Zahab’s dysfunctional childhood and adolescence and significant mental health issues, in combination, reduce his moral culpability. His significant mental health issues make him a less suitable vehicle for general deterrence and I therefore reduce the weight to be given to general deterrence in resentencing him. Some, though not great, weight must be given to specific deterrence in sentencing him.
Judge O’Rourke SC made a finding of special circumstances to reduce the non-parole period from the statutory ratio to just over 66%, having regard to Mr Zahab’s mental health issues, his time in custody being more onerous, his dire need for supervision for himself and the community, and his very real risk of institutionalisation. I have taken into account Mr Zahab’s mental health issues as reducing his moral culpability and the consequences flowing therefrom and his mental health making his time in custody more onerous in fixing his head sentence, so I do not double count them as special circumstances to reduce his non-parole period. I take into account his need for rehabilitation, his prospects of such now that he is taking buprenorphine, and his risk of institutionalisation from having spent about half his adult life in custody as special circumstances. It would in my view be unfair to do otherwise than to apply the same ratio of 66%.
I bear in mind in resentencing Mr Zahab the issue of parity with his co-offenders Mr Suman and Mr Helou, and the sentences imposed on them. I have taken into account that they pleaded guilty to a more serious offence, which encompassed their being armed with the firearm, and that their offence had a higher maximum penalty. I take into account their conduct in their offending and that they planned the offence and recruited Mr Zahab at the last minute to drive them to the hotel. I take into account that both Mr Suman and Mr Helou received 25% discounts for their early pleas of guilty. I note from Mr Suman’s sentencing remarks which were included in the appeal book that he committed his offence while on parole. I note his difficult childhood circumstances, and the cognitive impacts of a head injury he suffered upon his arrest. His criminal history included several armed robbery offences.
Having regard to her Honour’s sentencing remarks for Mr Helou I note that while his early childhood was not as difficult as Mr Suman’s he had suffered from incidents later in life, including having been shot, with ongoing pain management needs. He also had significant mental health issues. He has the prospect of family support on his release. His criminal history was described as extensive, including armed robbery and related offences and firearm offences. He had not committed the offence in breach of parole.
In resentencing Mr Zahab I have taken into account that he pleaded guilty to a less serious offence with a lesser maximum penalty, his lesser and limited role in the offence and the matters personal to him which I have referred to in this judgment, including that his criminal history was less serious than his co-offenders’ and did not contain prior similar offending.
I would sentence Mr Zahab to a term of imprisonment of 3 years and 3 months, which incorporates a 5% discount for his plea of guilty in the District Court. I set a non-parole period of 2 years, 2 months. The sentence will date from 29 January 2025. The non-parole period will expire on 28 March 2027.
Therefore I propose the following orders.
Grant leave to appeal.
Allow the appeal.
Quash the sentence imposed in the District Court and resentence Mr Zahab to a term of imprisonment of 3 years and 3 months with a non-parole period of 2 years and 2 months dating from 29 January 2025. The sentence will expire on 28 April 2028 and the non-parole period on 28 March 2027.
**********
Jamal Zahab
R
(2014) 252 CLR 601
(1999) 46 NSWLR 346
(2010) 77 NSWLR 7
(1981) 147 CLR 383