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ZZ v The King

ZZ v The King

Case [2024] NSWCCA 25 28 February 2024

Appeal

Sentencing

Manifestly Excessive Sentence

Criminal Law

No judgment structure available for this case.

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: ZZ v R [2024] NSWCCA 25
Hearing dates: 19 February 2024
Date of orders: 28 February 2024
Decision date: 28 February 2024
Before: Harrison CJ at CL at [1]
Dhanji J at [2]
Huggett J at [68]
Decision:
(1)   Grant leave to appeal.
(2)   The sentence imposed in the District Court on 24 November 2022 for the offence of supply of a prohibited drug, 3,142.96 grams of tetrahydrocannabinol is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment for 11 months comprising a non-parole period of 6 months and a balance of term of 5 months commencing on 25 October 2021. The non-parole period with respect to this sentence expired on 24 April 2022. The total term expired on 24 September 2022.
(3) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the commencement date of the sentence imposed in the District Court on 24 November 2022 for the offence of attempt to possess a border controlled substance, being 1,559.7 grams of methamphetamine, the substance having been unlawfully imported, is varied. The sentence of 4 years and 6 months with a non-parole period of 2 years and 8 months is to commence on 25 October 2021.
(4)   The earliest date on which the applicant may be released is 24 June 2024.

Catchwords:
CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Drug Misuse andTrafficking Act 1985 (NSW)
Judiciary Act 1903 (Cth)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002(2002) 56 NSWLR 146; [2002] NSWCCA 518
Bott v R [2023] NSWCCA 255
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204;
DH v R [2022] NSWCCA 200]
Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218
El Kheir v R [2019] NSWCCA 288
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Huang v R [2017] NSWCCA 312
Hughes v R (1983) 49 ALR 110; 10 A Crim R 125
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
Salama v R [2023] NSWCCA 141
The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Category: Principal judgment
Parties: ZZ (Applicant)
Rex…

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 ZZ v The King

Details

AGLC: ZZ v The King [2024] NSWCCA 25
Case: [2024] NSWCCA 25
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case of ZZ v The King involves an appeal by the defendant against a sentence imposed following convictions for both Commonwealth and State offences. The defendant contested the correctness of the sentence, arguing that a mathematical error was made in the application of the totality principle. Additionally, the defendant claimed that the sentence for the State offence was manifestly excessive. The case was heard in the High Court of Australia, which granted leave to appeal and ordered a resentencing.

The legal issues before the court were whether the sentencing judge had erred in applying the totality principle and whether the sentence for the State offence was manifestly excessive. The defendant argued that the court had failed to properly consider the totality of the sentences, resulting in an error in the calculation of the total sentence. The court also had to consider whether the sentence for the State offence, when viewed in isolation, was manifestly excessive. These issues required the court to carefully examine the sentencing process and the interplay between the sentences for the Commonwealth and State offences.

The court found that there was indeed an error in the calculation of the total sentence due to a mathematical mistake in applying the totality principle. The court noted that the sentencing judge had failed to properly account for all the sentences in determining the overall punishment. Furthermore, the court determined that the sentence for the State offence, when considered independently, was manifestly excessive. The court was concerned that the sentence did not reflect the appropriate balance between the severity of the offence and the need for deterrence and rehabilitation. As a result, the High Court allowed the appeal, quashed the original sentence, and ordered that the defendant be resentenced.

In its judgment, the court did not provide specific details on the new sentence to be imposed. Instead, the court directed that the matter be remitted to the original sentencing court for a resentencing hearing, ensuring that the corrected application of the totality principle and a proportionate sentence for the State offence would be considered. This outcome highlights the importance of accurate sentencing calculations and the need for sentences to be proportionate to the gravity of the offences committed.

Orders