R v Zycki

[2024] NSWCCA 9

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Zycki [2024] NSWCCA 9

Hearing dates:

14 February 2024

Date of orders:

14 February 2024

Decision date:

14 February 2024

Before:

Adamson JA; Wright J; Sweeney J

Decision:

1. The appeal is allowed.

2. The sentence imposed in the District Court on 6 October 2023 is quashed.

3. Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) the matter is remitted to the District Court for resentencing.

4. The matter is listed for mention in the Sydney District Court arraignment list at 9:30am on Friday, 23 February 2024.

Catchwords:

CRIME — Appeals — Appeal against sentence — By Crown — Where parties agree sentence miscarried — Offence which carries life imprisonment erroneously attached to Form 1 — Matter remitted to District Court

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Clappison v R [2017] NSWCCA 33

Paul Campbell v R [2018] NSWCCA 87

R v Issa [2002] NSWCCA 206

R v JH [2021] NSWCCA 299

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Rex (Crown) (Applicant)
Janey Maree Zycki (Respondent)

Representation:

Counsel:
G Newton SC (Applicant)
M Valentin (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Applicant)
WM Lloyd & Associates (Respondent)

File Number(s):

2022/112649

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2023] NSWDC 412

Date of Decision:

6 October 2023

Before:

Mahony SC DCJ

File Number(s):

2022/112649

JUDGMENT

1. THE COURT: This is a Crown appeal against a sentence imposed in the District Court, brought by the Crown to correct an error which caused the sentencing process to miscarry. Both parties agree that because of the particular error in the sentencing process, the matter should be remitted to the District Court for resentencing. For the reasons explained below, that is the appropriate order for this Court to make.

2. Because of the issue and the parties’ agreement as to the appropriate disposition of the matter, the description of the matter need only be brief.

3. The respondent, Ms Zycki, was sentenced by Judge Mahony SC in the District Court on 6 October 2023 for one offence of supplying a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), to which she had pleaded guilty.

4. In the course of sentencing Ms Zycki for that offence his Honour was asked to, and did, take into account four offences on a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). One of those offences, an offence of supplying a large commercial quantity of a prohibited drug (MDMA), contrary to s 25(2) of the Drug Misuse and Trafficking Act, was punishable by imprisonment for life. Section 33(4)(b) provides that a court may not take a further offence into account, pursuant to s 33, if the offence is punishable by imprisonment for life.

5. The erroneous inclusion of the offence on the Form 1 was not detected by the legal representatives for the parties or the sentencing judge during the sentencing process.

6. On 31 October 2023, that is, in a timely manner, the Crown filed an appeal against the sentence, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), on the sole ground that the sentencing process miscarried by the taking into account on the Form 1 of the offence carrying a life sentence.

7. Both parties agree that the error caused the sentence to miscarry and have submitted that the matter should be remitted to the District Court pursuant to s 12(2) of the Criminal Appeal Act, which provides that "The Court of Criminal Appeal may remit a matter… to a court of trial for determination and may, in doing so, give any directions subject to which the determination is to be made".

8. This Court has previously held that remittal to the District Court is the appropriate course in such circumstances: R v Issa [2002] NSWCCA 206; Clappison v R [2017] NSWCCA 33; Paul Campbell v R [2018] NSWCCA 87; R v JH [2021] NSWCCA 299. One reason for that being the appropriate course is that it is for the Director of Public Prosecutions to decide whether and how to proceed with the offence which was erroneously included in the Form 1.

9. In all those circumstances the appropriate orders to be made are:

1. The appeal is allowed.

2. The sentence imposed in the District Court on 6 October 2023 is quashed.

3. Pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) the matter is remitted to the District Court for resentencing.

4. The matter is listed for mention in the Sydney District Court arraignment list at 9:30am on Friday, 23 February 2024.

**********

Decision last updated: 14 February 2024