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Zuffo v R

Zuffo v R

Case [2017] NSWCCA 187 2 August 2017

Unlikelihood of Re-offending

Prospects of Rehabilitation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Zuffo v R [2017] NSWCCA 187
Hearing dates: 19 July 2017
Date of orders: 02 August 2017
Decision date: 02 August 2017
Before: Hoeben CJ at CL at [1];
Price J at [2];
Adamson J at [91]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords: CRIMINAL LAW – appeal against sentence – one count of supply of not less than commercial quantity of MDMA and one count of supplying MDMA on ongoing basis – whether judge failed to make a determination as to likelihood of re-offending – difference between prospects of rehabilitation and unlikelihood of re-offending considered – whether error in failing to apply sentencing principles applicable to youthful offenders – whether error in failing to consider applicant’s mental condition – whether lesser sentence warranted
Legislation Cited: Crimes (Sentencing Procedure) Act 1999, ss 21A(3)(g), 21A(3)(h), 21A(3)(i)
Drug Misuse and Trafficking Act 1985, ss 25A(1), 25(2)
Cases Cited: Director Of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Jung v R [2017] NSWCCA 24
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lam v R [2015] NSWCCA 143
Peiris v R [2014] NSWCCA 58
R v Ha [2004] NSWCCA 386
R v M.A.K.; R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v Pham [2005] NSWCCA 94
R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
RCW v R (No 2) [2014] NSWCCA 190
Scott v R [2010] NSWCCA 103
Stoeski v R [2014] NSWCCA 161
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Blake Zuffo (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr M. Ramage QC (Applicant)
Ms T. Smith (Respondent)
Solicitors:
Jeffreys Lawyers (Applicant)
Mr C. Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/00315189
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

19 October 2016

Before:

Delaney ADCJ

File Number(s):

2013/00315189

Judgment

HOEBEN CJ at CL: I agree with Price J and the order which he proposes. I also agree with the additional reasons of Adamson J. In particular, I agree with her Honour’s observation that little weight will normally be given to an opinion expressed by a judge in an exchange with counsel in the course of sentence proceedings.
PRICE J: Blake Zuffo (“the applicant”) seeks leave to appeal against the sentence imposed upon him by Delaney ADCJ (“the judge”) in the District Court at Sydney on 19 October 2016 for one count of supply of not less than the commercial quantity of a prohibited drug contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) (count 1) and one count of supplying a prohibited drug on an ongoing basis contrary to s 25A(1) DMT Act (count 2).
At the applicant’s request, a…

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 Zuffo v R

Details

AGLC: Zuffo v R [2017] NSWCCA 187
Case: [2017] NSWCCA 187
Decision Date: 02 August 2017

CaseChat Overview and Summary

In Zuffo v R, the respondent appealed against his sentence for supplying a commercial quantity of MDMA and supplying MDMA on an ongoing basis. The appeal was heard in the High Court of Australia, with the respondent arguing that the primary judge failed to make a determination as to the likelihood of re-offending. The respondent also contended that the judge erred in not applying sentencing principles applicable to youthful offenders and in not considering his mental condition.

The court considered whether the primary judge’s failure to assess the likelihood of re-offending constituted an error. The court also examined if there was a distinction between prospects of rehabilitation and unlikelihood of re-offending and whether this distinction was relevant to the appeal. Additionally, the court reviewed whether the primary judge erred in not applying sentencing principles for youthful offenders and in not considering the respondent’s mental condition.

The court concluded that the primary judge did not err in failing to determine the likelihood of re-offending, as the assessment of prospects of rehabilitation was sufficient. The court held that there was no significant difference between the prospects of rehabilitation and the unlikelihood of re-offending in this context. The court found no error in the primary judge’s failure to apply sentencing principles for youthful offenders or in not considering the respondent’s mental condition. The appeal was dismissed, and the original sentence was upheld.

The High Court ordered that the appeal be dismissed and that the sentence imposed by the primary judge be upheld.

Orders