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Supreme Court 11 March 2020

R v Azzi (No 2)

[2020] NSWSC 989

DrugsFirearms & weaponsDomestic & family violence
CRIMINAL LAW SENTENCE S 166 CERTIFICATE SENTENCE AFTER TRIAL

Citation: R v Azzi (No 2) [2020] NSWSC 989
Court: Supreme Court of New South Wales
Date: 11 March 2020
Judge: Walton J

Background

The offender had been convicted of manslaughter and a weapons offence and sentenced on 6 March 2020 in the primary judgment, R v Azzi (No 1). At the time of committal to the Supreme Court for trial, a Magistrate had also referred three related summary offences to the Court under a s 166 Certificate. Those offences were possession of a prohibited drug (methylamphetamine), contravention of an Apprehended Violence Order, and carrying a cutting weapon.

After delivering the principal sentencing remarks, the Court identified two problems with how the certificate offences had been handled. First, sequence 5 on the s 166 Certificate incorrectly described the cutting weapon offence. Second, the language used in the sentencing remarks gave the appearance of Form 1 sentencing rather than the distinct procedure required by ss 166, 167, and 168 of the Criminal Procedure Act 1986 (NSW). Crucially, no actual sentence had been pronounced for the certificate offences.

The Court convened a further hearing via audio-visual link on 11 March 2020 to resolve these issues. Both the Crown and senior counsel for the offender agreed that the sentencing proceedings remained incomplete, and the offender confirmed his guilty pleas to the three related offences.

  • Whether the s 166 Certificate needed to be amended to correct the misdescription of sequence 5.
  • Whether the certificate offences had in fact been sentenced, or whether the proceedings remained incomplete.
  • What sentence was appropriate for each of the three certificate offences, given the Court's powers are limited to those of the Local Court in respect of such matters.
  • Whether a non-parole period was required for the certificate offences, or whether fixed terms were appropriate.

Decision

The Court accepted the agreed position of both parties that no sentence had been pronounced for the certificate offences and that the proceedings therefore remained open. This meant it was unnecessary to invoke the slip correction provisions of s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court also accepted the amended s 166 Certificate executed by the Crown Prosecutor, which corrected the misdescription of sequence 5 to read "carry cutting weapon."

Walton J declined to impose no penalty for the related offences, finding that course was not appropriate having regard to s 167(1)(b) of the Criminal Procedure Act. In sentencing, the Court was confined to powers exercisable by the Local Court, consistent with R v Doan (2000) 50 NSWLR 115.

The Court determined that fixed terms of imprisonment, running concurrently from the offender's date of arrest on 7 November 2016, were appropriate. Pursuant to s 45(1) of the Crimes (Sentencing Procedure) Act, no non-parole period was imposed for any of the three offences, given they ran concurrently with each other and with the sentence for Count 2 (the weapons offence).

By the time the sentences were formally imposed, all three had already expired by operation of their start and end dates.

Orders Made

  • Offender convicted of possessing a prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW): fixed term of 3 months' imprisonment, commencing 7 November 2016 and ending 6 February 2017.
  • Offender convicted of contravening a prohibition/restriction in an AVO (Domestic) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW): fixed term of 3 months' imprisonment, commencing 7 November 2016 and ending 6 February 2017.
  • Offender convicted of carrying a cutting weapon contrary to s 547D of the Crimes Act 1900 (NSW): fixed term of 6 months' imprisonment, commencing 7 November 2016 and ending 6 May 2017.
  • All three sentences ordered to run concurrently with each other and with Count 2.
  • The reasons on sentence in R v Azzi (No 1) to be adjusted to reflect these further remarks.

Key Takeaways

  • A s 166 Certificate must be formally sentenced under the specific regime in ss 166, 167, and 168 of the Criminal Procedure Act 1986 (NSW); language in sentencing remarks that gives the appearance of Form 1 sentencing does not satisfy that requirement.
  • Where no sentence has actually been pronounced for certificate offences, the sentencing proceedings remain incomplete and can be finalised without resort to the slip correction provisions in s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • R v Doan confirms that when sentencing for related offences referred by certificate, the Supreme Court's powers are limited to those exercisable by the Local Court.
  • Under s 45(1) of the Crimes (Sentencing Procedure) Act, a court may decline to impose a non-parole period for certificate offences where those offences are to be served concurrently with a principal sentence.
  • An error in the description of an offence on a s 166 Certificate can be corrected by the Crown Prosecutor executing an amended certificate, and the corrected form will govern the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 33B(1)(a), 547D
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 43, 44, 45(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 167, 168
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases
- R v Azzi (No 1) [2020] NSWSC 988
- R v Doan (2000) 50 NSWLR 115; [2000] NSWCCA 317