AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
9
Court of Criminal Appeal 2 August 2017

Zuffo v R

[2017] NSWCCA 187

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE OFFENDING OFFENDING CONSIDERED WHETHER LESSER SENTENCE WARRANTED

Citation: Zuffo v R [2017] NSWCCA 187
Court: Court of Criminal Appeal, NSW
Date: 2 August 2017
Judge(s): Hoeben CJ at CL, Price J, Adamson J

Background

The applicant was sentenced in the District Court at Sydney in October 2016 for two offences under the Drug Misuse and Trafficking Act 1985 (NSW): supply of not less than the commercial quantity of MDMA (1,040 pills, approximately 260 grams) and ongoing supply of MDMA on four separate occasions between May and June 2013. A further supply offence was taken into account on a Form 1. The applicant was 22 years old at the time of the offences and was arrested in October 2013.

The sentencing judge allowed a 10 per cent discount for the utilitarian value of a guilty plea and found special circumstances, reducing the statutory non-parole ratio from 75 per cent to approximately 52 per cent. The overall effective sentence was 5 years and 3 months imprisonment, with a non-parole period of 2 years and 9 months.

The applicant sought leave to appeal on five grounds, arguing the sentencing judge had made several errors in the assessment of subjective factors, including likelihood of re-offending, principles applicable to youthful offenders, rehabilitation, and the applicant's mental condition.

  • Whether the sentencing judge failed to make a specific finding on the likelihood of the applicant re-offending, as required by s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge erred by failing to apply the sentencing principles applicable to youthful offenders
  • Whether the sentencing judge erred by failing to give weight to the applicant's prospects of rehabilitation
  • Whether the sentencing judge erred by failing to consider the applicant's mental condition, as documented in two psychological reports
  • Whether the sentence was manifestly excessive

Decision

Ground 1: Likelihood of re-offending. The Court found that the sentencing judge erred by failing to make a specific finding on whether the applicant was unlikely to re-offend. Under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999, unlikelihood of re-offending is a mitigating factor, and where an offender raises it, the sentencing court is obliged to determine whether it is established on the balance of probabilities. The Court noted an apparent tension in the sentencing judge's reasons: his Honour found it necessary for the sentence to reflect specific deterrence, which sits uncomfortably with a conclusion that the applicant was unlikely to re-offend. This ground was made out.

Adamson J added a note of caution regarding weight given to exchanges between a judge and counsel during sentencing proceedings. Her Honour observed that a comment by the sentencing judge to the effect that recidivism "can't be determined until after he is released" was best understood as a truism rather than a concluded finding, and that courts should not deter sentencing judges from expressing preliminary observations during hearings by treating such remarks as formal conclusions.

Grounds 2 to 4: Youthful offenders, rehabilitation, and mental condition. The Court examined whether the sentencing judge properly engaged with the principles governing youthful offenders and with the two psychological reports tendered on the applicant's behalf. Price J addressed each of these grounds, and the Court found sufficient error across the grounds to warrant re-sentencing.

Ground 5: Manifest excess. In light of the errors identified under the other grounds, the Court did not need to resolve the manifest excess ground independently, proceeding instead to re-sentence the applicant.

Orders Made

• Leave to appeal granted.
• Appeal dismissed.

Key Takeaways

  • Under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999, where an offender raises unlikelihood of re-offending as a mitigating factor, the sentencing court is obliged to make a specific finding on that question. The onus rests on the offender to establish it on the balance of probabilities, consistent with The Queen v Olbrich (1999) 199 CLR 270.

  • A distinction exists between prospects of rehabilitation and unlikelihood of re-offending. These are separate mitigating considerations under the sentencing framework, and a finding on one does not necessarily satisfy the obligation to address the other.

  • Inconsistency between a sentencing judge's emphasis on specific deterrence and a potential conclusion that re-offending is unlikely may itself signal a failure to properly address the re-offending question.

  • The Court of Criminal Appeal cautioned that little weight should ordinarily be given to opinions or observations made by a sentencing judge in the course of exchanges with counsel during the hearing. Such remarks should not be treated as formal conclusions on sentencing issues.

  • Failure to engage with psychological evidence addressing an offender's mental condition and background can constitute error, particularly where that material is directly relevant to established mitigating factors under the Crimes (Sentencing Procedure) Act 1999.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(g), 21A(3)(h), 21A(3)(i)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A(1)

Cases:
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v M.A.K.; R v M.S.K. (2006) 167 A Crim R 159; [2006] NSWCCA 381
- R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
- Jung v R [2017] NSWCCA 24
- Lam v R [2015] NSWCCA 143
- Peiris v R [2014] NSWCCA 58
- RCW v R (No 2) [2014] NSWCCA 190
- Stoeski v R [2014] NSWCCA 161
- Zreika v R [2012] NSWCCA 44
- Scott v R [2010] NSWCCA 103
- R v Ha [2004] NSWCCA 386
- R v Pham [2005] NSWCCA 94