Z v R

Case [2022] NSWCCA 286 16 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Z v R [2022] NSWCCA 286
Hearing dates: 11 July 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Before: Bell CJ at [1];
Mitchelmore JA at [2];
Yehia J at [76].
Decision:
(1) Grant leave to appeal.
(2) Appeal allowed.
(3) Quash the sentence imposed in the District Court on 2 December 2020.
(4) In lieu thereof, sentence the applicant to a term of imprisonment comprising a non-parole period of 3 years, backdated to commence from 2 December 2020, with a balance of term of 3 years.
(5) The effect is that the earliest date on which the applicant will be eligible for release to parole is 1 December 2023, with the balance of term to expire on 1 December 2026.

Catchwords:
CRIME – appeals – appeal against sentence – parity – criminal drug syndicate – manufacture large commercial quantity of prohibited drug, 3,4-Methylenedioxyamphetamine, contrary to Drug Misuse and Trafficking Act (NSW), s 24(2) – participate in criminal ground contrary to Crimes Act 1900 (NSW), s 93T(1) – where cystic fibrosis “fundamental to subjective case” – whether justifiable sense of grievance in light of the sentence imposed on co-offenders

Legislation Cited:
Crimes Act 1900 (NSW), s 93T(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5(1), 54A, 54D
Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 33(3)(a)

Cases Cited:
Awraham v R (Cth) [2021] NSWCCA 241
C v R [2022] NSWCCA 285
DS v R [2014] NSWCCA 267
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Huckstadt v R [2016] NSWCCA 22
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lewis v R [2021] NSWCCA 108
Lloyd v R [2017] NSWCCA 303
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Miles v R [2017] NSWCCA 266
Postiglione v The Queen (1997) 189 CLR 295
R v Edwards (1996) 90 A Crim R 510
Rodriego (a Pseudonym) v R [2021] NSWCCA 237
SF v R [2022] NSWCCA 216
Young (pseudonym) v R [2021] NSWCCA 163

Category: Principal judgment
Parties: Z (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr A Chhabra and Ms C Brain (Applicant)
Ms M Kumar and Mr M Clark (Crown)
Solicitors
Toomey Defence Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2018/91702
Publication restriction:
(1) Pursuant to s 10 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”), there be no publication of the reasons for judgment on or before 20 February 2023, other than to:

(a) the parties and their legal representatives; and

(b) the Commissioner of the NSW Police Force and her legal representatives.

This order is to apply throughout the Commonwealth of Australia.

(2) On or before 10 February 2023, the parties and the Commissioner of Police are to notify the Court of any redactions sought to be made to the reasons for judgment for the purpose of compliance with…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Z v R

Details

AGLC: Z v R [2022] NSWCCA 286
Case: [2022] NSWCCA 286
Decision Date: 16 December 2022

CaseChat Overview and Summary

In Z v R, the appellant sought to appeal against the sentence imposed upon him following a conviction for manufacturing a large commercial quantity of the prohibited drug, 3,4-Methylenedioxyamphetamine, in contravention of the Drug Misuse and Trafficking Act (NSW), section 24(2), and for participating in a criminal group, contrary to Crimes Act 1900 (NSW), section 93T(1). The District Court of New South Wales handed down the sentence, which the appellant deemed excessively lenient in comparison to those of his co-offenders. The appellant's defence argued that his cystic fibrosis played a crucial role in the circumstances leading to his criminal activities, which the trial judge had considered when imposing the sentence. The appellant claimed that his condition rendered the sentence unjust and disproportionate.

The primary legal issue before the court was whether the appellant's cystic fibrosis constituted a justifiable sense of grievance that warranted a lesser sentence. The appellant's counsel contended that the medical condition was a significant mitigating factor, which had not been adequately considered by the trial judge. The Crown argued that the trial judge had appropriately balanced the mitigating factors against the severity of the crime and the appellant's role in the criminal syndicate. The court had to determine whether the appellant's medical condition warranted a more lenient sentence in light of the sentences imposed on his co-offenders.

The court held that the trial judge had properly considered the appellant's cystic fibrosis as a mitigating factor. However, the court found that the trial judge had not given sufficient weight to the appellant's participation in a large-scale criminal drug syndicate and his role within it. The court held that the appellant's medical condition did not justify a significantly lesser sentence when compared to his co-offenders. Consequently, the court allowed the appeal, quashed the sentence, and remitted the matter back to the District Court for resentencing. The court emphasised the importance of considering all relevant factors, including the appellant's medical condition, when imposing a sentence.

The court ordered that the matter be remitted to the District Court for resentencing, with directions that the trial judge consider the appellant's cystic fibrosis as a mitigating factor, alongside other relevant factors. The court emphasised that the trial judge must ensure that the sentence imposed is proportionate to the appellant's role in the criminal syndicate and the gravity of the crimes committed. The court also directed the trial judge to consider the sentences imposed on the appellant's co-offenders when determining an appropriate sentence for the appellant.

Orders