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Court of Criminal Appeal 19 February 2001

R v Zreika

[2001] NSWCCA 106

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE DRUG TRAFFICKING NO PARTICULAR POINT OF PRINCIPLE

Citation: R v Zreika [2001] NSWCCA 106
Court: New South Wales Court of Criminal Appeal
Date: 19 February 2001
Judge(s): Grove J, Hulme J

Background

The applicant, a young man born in January 1979, pleaded guilty in the District Court to one count of supplying cocaine, contrary to the Drug Misuse and Trafficking Act. Police had stopped him in a motor vehicle and, during a search, found cocaine concealed in a sock inside his clothing. The offence carried a maximum penalty of fifteen years imprisonment.

The sentencing judge, the Chief Judge of the District Court, imposed a total term of two years imprisonment divided into a minimum term of eighteen months and an additional term of six months. The applicant had a prior conviction for armed robbery, committed five days before his eighteenth birthday, for which he had been sentenced to two years penal servitude served by way of periodic detention. His attendance at periodic detention had been irregular, with eight unauthorised absences recorded before his arrest on the current matter.

The applicant sought leave to appeal against the severity of the sentence, arguing that the sentencing judge had made two material factual errors in his remarks.

  • Whether the sentencing judge made a material error of fact by stating the armed robbery was committed just after the applicant turned eighteen, when it was in fact committed five days before his eighteenth birthday.
  • Whether the sentencing judge made a material error of fact by suggesting the applicant was not complying with his periodic detention obligations at the time of the current offence, when records showed he had attended on at least the last five required occasions before his arrest.
  • Whether either error, individually or together, was sufficient to enliven the Court of Criminal Appeal's jurisdiction to intervene and substitute a different sentence.

Decision

Grove J addressed each alleged error in turn. On the first ground, he accepted that the sentencing judge's description of the timing of the armed robbery was not precisely accurate. However, he found this inaccuracy entirely immaterial to the outcome of the sentencing proceedings.

On the second ground, Grove J acknowledged some ambiguity in the sentencing judge's remarks about the applicant's periodic detention attendance. While the applicant had attended on the last five required occasions before his arrest, the cancellation of his periodic detention order had arisen from accumulated earlier non-attendances, not from any immediately preceding breach. Grove J found the sentencing judge was not making a precise reference to conduct immediately before the arrest.

The Court reaffirmed that its jurisdiction under section 6 of the Criminal Appeal Act is to substitute a sentence it considers appropriate in all the circumstances. Grove J found the sentence was well within the range of the sentencing judge's discretionary judgment, that no error had been established, and that no other sentence would have been more appropriate. Hulme J agreed with both the proposed order and Grove J's reasons.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A minor factual inaccuracy in a sentencing judge's remarks does not automatically warrant appellate intervention; the inaccuracy must be material to the outcome of the sentencing proceedings.
  • Ambiguous remarks about an offender's compliance history do not constitute reversible error where the overall factual picture before the sentencing court was accurate and the remarks reflect that broader picture.
  • The Court of Criminal Appeal's jurisdiction under section 6 of the Criminal Appeal Act is to substitute a sentence it considers appropriate in all the circumstances, not merely to correct technical imprecision in sentencing remarks.
  • No error was established in the sentence of two years imprisonment (minimum eighteen months, additional six months) imposed for a cocaine supply offence on an offender with a prior armed robbery conviction.
  • In dismissing the appeal, the Court confirmed that the sentence fell comfortably within the sentencing judge's discretionary range given the applicant's background and offending history.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), ss 25 and 29
- Criminal Appeal Act (NSW), s 6

Cases cited: None cited in the provided text.