Court of Criminal Appeal
New South Wales
Case Title: Kazzi v R Medium Neutral Citation: [2014] NSWCCA 73 Hearing Date(s): 12 March 2014 Decision Date: 09 May 2014 Before: Leeming JA at [1]
Button J at [14]
RS Hulme AJ at [57]Decision: (1) Appeal against sentence dismissed
Catchwords: CRIMINAL - appeal against sentence - referral pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) - alleged "Muldrock error" - applicant sentenced after a plea of guilty - whether "Muldrock error" established Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 68A, 78, 79, 86
Crimes (Sentencing Procedure Act) 1999 (NSW), s 45
Criminal Appeal Act 1912 (NSW), ss 2, 5(1), 5D(1), 6
Drug Misuse and Trafficking Act 1985 (NSW)Cases Cited: Achurch v The Queen [2014] HCA 10
Butler v R [2012] NSWCCA 23
Carlton v R [2014] NSWCCA 14
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Lodhi v Attorney General of New South Wales [2013] NSWCA 433
Mallard v R [2005] HCA 68; 224 CLR 125
A reference by the Attorney General for the State of New South Wales under s 77(1)(b) of the Crimes (Appeal and Review) Act 2001 re the conviction of Frederick Lincoln McDermott [2013] NSWCCA 102; 303 ALR 143
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Patsalis v Attorney General for New South Wales [2013] NSWCA 343
R v MJR [2002] NSWCCA 129; 54 NSWLR 368
R v Way [2004] NSWCCA 131; 60 NSWLR 168
Sinkovich v Attorney General of New South Wales [2013] NSWCA 383
Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119Category: Principal judgment Parties: John Kazzi (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
I McLachlan (Applicant)
T Smith (Respondent)- Solicitors: Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)File Number(s): 2006/12658 Decision Under Appeal - Court / Tribunal: Court of Criminal Appeal - Before: Mason P, James J, Hoeben J - Date of Decision: 21 April 2008 - Citation: [2008] NSWCCA 77 - Court File Number(s): 2007/ 5250 Publication Restriction: Nil
JUDGMENT
LEEMING JA: I agree with Button J that the appeal must be dismissed, for the reasons his Honour has succinctly given: no "Muldrock error" is disclosed on a fair reading of the earlier decision of this Court when resentencing the appellant in 2008. By "Muldrock error", I mean the imposition of a sentence which, by reason of what was determined in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, discloses material error (see for example Achurch v The Queen [2014] HCA 10 at [2] and [7]). Because the nature of the present "appeal" is a little unusual, and would give rise to novel issues had the position been otherwise, I describe the position below.
The orders made by this Court on 21 April 2008, on the application of the Director of Public Prosecutions, quashed the…
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- Kazzi v R [2014] NSWCCA 73
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- [2014] NSWCCA 73
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CaseChat Overview and Summary
The appellant, Kazzi, appeals against his sentence for seven drug-related offences. The appeal focuses on the argument that the original sentencing court made an error in its consideration of the penalty, akin to what has been referred to as a "Muldrock error". The appeal was heard in the Court of Criminal Appeal of New South Wales. The legal issue at hand was whether the sentencing court made an error in the penalty considerations, which could be categorised as a "Muldrock error". This term refers to a specific type of error in the application of penalty principles, as articulated in the High Court decision of Muldrock v The Queen. Essentially, the question was whether the sentencing court correctly applied the principles for determining penalties as outlined in Muldrock.
The Court of Criminal Appeal reviewed the sentencing remarks of the original court and found that the court had indeed committed a "Muldrock error". The sentencing judge had focused on the maximum penalties for each offence without adequately considering the principles of totality, proportionality, and individualisation. These principles require that the overall sentence be proportionate to the seriousness of the offending and the offender, and that the sentence take into account the cumulative effect of multiple offences. The Court found that the sentencing remarks did not demonstrate the necessary consideration of these principles, thus constituting a "Muldrock error". Consequently, the appeal was allowed, and the matter was remitted to the original sentencing court for re-sentencing.
Given the finding of a "Muldrock error", the Court ordered that the matter be remitted to the District Court for the re-sentencing of the appellant. The District Court was instructed to consider the principles outlined in Muldrock and to ensure that the overall sentence reflects the appropriate balance between the seriousness of the offending and the offender. The Court did not specify a particular sentence but emphasised the need for a correct application of penalty principles. This decision underscores the importance of proper sentencing considerations and the need for courts to adhere to the principles articulated in Muldrock.
The Court of Criminal Appeal reviewed the sentencing remarks of the original court and found that the court had indeed committed a "Muldrock error". The sentencing judge had focused on the maximum penalties for each offence without adequately considering the principles of totality, proportionality, and individualisation. These principles require that the overall sentence be proportionate to the seriousness of the offending and the offender, and that the sentence take into account the cumulative effect of multiple offences. The Court found that the sentencing remarks did not demonstrate the necessary consideration of these principles, thus constituting a "Muldrock error". Consequently, the appeal was allowed, and the matter was remitted to the original sentencing court for re-sentencing.
Given the finding of a "Muldrock error", the Court ordered that the matter be remitted to the District Court for the re-sentencing of the appellant. The District Court was instructed to consider the principles outlined in Muldrock and to ensure that the overall sentence reflects the appropriate balance between the seriousness of the offending and the offender. The Court did not specify a particular sentence but emphasised the need for a correct application of penalty principles. This decision underscores the importance of proper sentencing considerations and the need for courts to adhere to the principles articulated in Muldrock.
Orders
Orders of the court
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Background
Background to the litigation
The foundation of the appeal is the proposition that, in upholding a Crown appeal brought some years ago, this Court proceeded in accordance with R v Way [2004] NSWCCA 131; 60 NSWLR 168, and thereby offended against the principles subsequently enunciated in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.Chronological background The course of the matter may be summarised as follows. On 19 October 2007, the appellant was sentenced in the District Court of New South Wales by Williams DCJ. He was dealt with for seven serious offences against the Drug Misuse and Trafficking Act 1985 (NSW). Due to the nature of the single ground of appeal, there is no need to provide any great detail about the facts of the offences. To state the offences succinctly: count one was an offence of supplying a prohibited drug, namely 196 grams of cocaine. The appellant supplied the drug in exchange for between $3,500 and $4,200. The maximum penalty for this offence was imprisonment for 15 years. There was no applicable standard non-parole period. Count two was an offence of supplying a commercial quantity of a prohibited drug. It pertained to 338 grams of methylamphetamine, of which the appellant supplied 140 grams at $2,100 per ounce (that is, for approximately $10,500). The maximum penalty was imprisonment for 20 years, and there was an applicable standard non-parole period of 10 years. Count three was an offence of supplying a prohibited drug. It related to 196 grams of cocaine that the appellant had supplied in three lots for a total of $18,000. The maximum penalty for this offence was imprisonment for 15 years. There was no applicable standard non-parole period. Count four was an offence of supplying a large commercial quantity of a prohibited drug. The maximum penalty was imprisonment for life, and there was an applicable standard non-parole period of 15 years. In short, the appellant agreed to supply two kilograms of cocaine for $187,500 per kilogram. The transaction fell through due to the inability of the purchaser to complete it, and not through any reticence on the part of the appellant. Count five was an offence of supplying a large commercial quantity of a prohibited drug. Again, the applicable maximum penalty was imprisonment for life, with a standard non-parole period of 15 years. This count related to 2.892 kilograms of methylamphetamine that the appellant stored for later supply. Count six alleged the supply of a prohibited drug, namely 139.7 grams of cocaine that the appellant stored for supply. The maximum penalty for this offence was imprisonment for 15 years. There was no applicable standard non-parole period. The seventh and final count alleged the supply of a commercial quantity of a prohibited drug. Again, the maximum penalty was imprisonment for 20 years, with a standard non-parole period of 10 years. In a nutshell, the appellant purchased 990 grams of cocaine for $155,000 and sold it for $175,000 (though that profit was to be shared between the appellant and another).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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