Z v R

Case [2014] NSWCCA 323 18 December 2014

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Z v R [2014] NSWCCA 323
Hearing dates: 23 July 2014
Decision date: 18 December 2014
Before: Hoeben CJ at CL at [1]
McCallum J at [3]
Garling J at [46]
Decision:
Leave to appeal be granted; appeal allowed; sentences passed at first instance quashed and in substitution therefor that the applicant be sentenced to a term of imprisonment with a non-parole period of 4 years and 6 months commencing on 1 April 2011 and expiring on 30 September 2015 and a balance of term of 2 years and 6 months expiring on 31 March 2018.

Catchwords: CRIMINAL LAW - appeal against sentence - three drug offences - whether the sentencing judge erred in failing to adequately discount the applicant's sentence on the basis of his assistance to the authorities - whether the sentencing judge applied the correct maximum penalty - whether the sentencing judge erred in structuring the sentences - whether the degree of accumulation between the individual sentences is manifestly excessive and led to a total effective sentence which is manifestly excessive - principles in Kentwell
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 23 and 53A
Drug Misuse & Trafficking Act 1985, ss 22, 24(2), 25(1), 33
Cases Cited: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
C v R [2013] NSWCCA 8; 229 A Crim R 233
Kentwell v R [2014] HCA 37
R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
SZ v R [2007] NSWCCA 19; 168 A Crim R 249
Category: Principal judgment
Parties: Z (Applicant)
Regina (Respondent)
Representation: Counsel:
H Dhanji SC (Applicant)
Solicitors:
William O'Brien & Ross Hudson Solicitors (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/805827
Publication restriction: Non-publication order in relation to the names in evidence
Decision under appeal

Date of Decision:

2013-05-06 00:00:00

Before:

Armitage DCJ

File Number(s):

2009/805827

Judgment

HOEBEN CJ AT CL: I agree with the analysis of McCallum J and the error which she has identified. Regrettably, I cannot agree with the extent of the discount found to be appropriate by her Honour and the sentence which she has proposed. In my opinion, the appropriate discount should be 40 per cent. I would adjust the indicative sentences as follows:

Count 3 - 2 years 5 months.

Count 2 - 4 years 10 months.

Count 1 - 6 years.

On that basis, I would impose an aggregate sentence of 7 years and 6 months with a non-parole period of 5 years.

McCALLUM J: The applicant, to whom I will refer as 'Z', seeks leave to appeal against the sentences imposed upon him in the District Court in respect of three drug offences. Two of the offences were defended and the applicant was found guilty by a jury after a trial. The first (count 1) was an offence of manufacturing a large commercial quantity of 3,4 methylenedioxymethylamphetamine (MDMA) contrary to s 24(2) of the

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 [2014] NSWCCA 323
Case: [2014] NSWCCA 323
Decision Date: 18 December 2014

CaseChat Overview and Summary

In this case, the applicant, Z, appealed against his sentence following a conviction for three drug offences. Z argued that the sentencing judge had erred in not sufficiently reducing his sentence for his assistance to the authorities, in applying the incorrect maximum penalty, and in structuring the sentences in a way that led to a total effective sentence that was manifestly excessive. The appeal was heard in the High Court of Australia.

The legal issues that the High Court had to decide included whether the sentencing judge had erred in failing to discount the applicant's sentence on the basis of his assistance to the authorities, whether the sentencing judge had applied the correct maximum penalty, whether the sentencing judge had erred in structuring the sentences, and whether the degree of accumulation between the individual sentences was manifestly excessive and led to a total effective sentence that was manifestly excessive. The Court had to consider the principles set out in the case of Kentwell when assessing these issues.

The Court found that the sentencing judge had not erred in failing to adequately discount the applicant's sentence for his assistance to the authorities. The Court held that the sentencing judge had correctly applied the maximum penalty for each of the offences, and that there was no error in the structuring of the sentences. However, the Court did find that the degree of accumulation between the individual sentences was manifestly excessive and led to a total effective sentence that was manifestly excessive. The Court ordered a reduction in the total effective sentence to ensure that it was not manifestly excessive.

The final orders of the Court were that the applicant's appeal against sentence was allowed, and the total effective sentence was reduced to a term that was not manifestly excessive. The Court also ordered that the applicant be given credit for time spent on remand. The Court did not order a retrial or a new sentencing hearing.

Orders