R v Zycki

Case [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.

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Details
AGLC
R v Zycki [2024] NSWCCA 9
Case
[2024] NSWCCA 9
Decision Date

CaseChat Overview and Summary

The matter of R v Zycki involved an appeal against sentence brought by the Crown. The defendant had been convicted of a serious offence that carried a potential sentence of life imprisonment. The case came before the court due to an error in the form used during sentencing. The error involved the attachment of the life imprisonment term to Form 1, which is not the appropriate form for the offence committed. The District Court, recognising the error, remitted the matter to itself to correct the sentencing process.

The legal issues before the court were whether the sentencing error was sufficiently significant to warrant a retrial of the sentencing process and whether the error could be corrected without necessitating a new trial of the facts. The Crown argued that the error miscarried the sentencing process, while the defence contended that the error was not material enough to warrant a retrial of the sentencing.

The court considered the nature of the error and its impact on the sentencing process. It held that the error, attaching the incorrect form for the life imprisonment term, was significant and did not merely constitute a clerical error. The court determined that the error miscarried the sentencing process, necessitating a retrial of the sentencing. The court further found that the error could be rectified by remitting the matter to the District Court to correct the form used and ensure the appropriate sentencing process was followed. Consequently, the court upheld the appeal and remitted the matter to the District Court for the purpose of re-sentencing.

The final orders of the court were to remit the matter to the District Court for the purpose of re-sentencing the defendant, ensuring that the correct legal procedures were followed in accordance with the law. The court did not address the conviction itself, which remained intact, but focused solely on rectifying the sentencing error.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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