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Court of Criminal Appeal 28 February 2024

ZZ v R

[2024] NSWCCA 25

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE COMMONWEALTH AND STATE OFFENCES LEAVE TO APPEAL GRANTED RESENTENCE

Citation: ZZ v R [2024] NSWCCA 25
Court: NSW Court of Criminal Appeal
Date: 28 February 2024
Judges: Harrison CJ at CL, Dhanji J (principal judgment), Huggett J

Background

The applicant, identified as ZZ, pleaded guilty in the Local Court to two offences: attempting to possess a commercial quantity of unlawfully imported methamphetamine (1,559.7 grams) contrary to Commonwealth law, and supplying a large commercial quantity of THC (3,142.96 grams) contrary to New South Wales law. Two further State offences (possession of a prohibited weapon and possession of testosterone) were taken into account on a Form 1 document at sentencing.

The offending arose from a single period of conduct in October 2021. The Australian Border Force had intercepted a consignment from Malaysia containing methamphetamine hidden in picture frames, substituted the drug with an inert substance, and allowed the controlled delivery to proceed. The applicant collected the package after conducting counter-surveillance, then returned home where police arrested him and located the THC lollies, baton, and testosterone during a consent search.

The District Court at Penrith sentenced the applicant in November 2022. After applying a combined 40 percent discount for an early guilty plea and past assistance, the applicant received 2 years and 4 months for the State offence (commencing October 2021) and 4 years and 6 months for the Commonwealth offence (commencing April 2022). The applicant sought leave to appeal on two grounds: that the sentencing judge made a mathematical error when applying the totality principle, and that the State offence sentence was manifestly excessive.

  • Whether the sentencing judge made a mathematical error when considering or applying the totality principle in constructing the aggregate sentence across Commonwealth and State offences
  • Whether the sentence imposed for the State offence (supply of a large commercial quantity of THC) was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and found in favour of the applicant on both grounds.

On the first ground, the Court accepted that the sentencing judge had made a mathematical error when applying the totality principle. The totality principle requires a sentencing court to step back and assess whether the combined effect of consecutive or concurrent sentences is proportionate to the overall criminality involved. The Court found that the error in the judge's calculations produced an unintended outcome in the construction of the overall sentence.

On the second ground, the Court concluded that the sentence for the State THC supply offence was manifestly excessive. The Court noted that while the State offence involved separate criminality, it arose from substantially the same circumstances and the same period of offending as the more serious Commonwealth offence. Given those circumstances and the length of the federal sentence, the Court held that the federal sentence was sufficient to encompass the totality of the applicant's criminality. The State offence sentence was therefore reduced significantly, with the Court observing that the federal sentence alone adequately reflected the overall offending.

The Court also noted that it was not appropriate to adjust the non-parole period for the federal offence on resentencing. By removing the inflated effect of the State sentence, the intended ratio of the non-parole period to the total term (approximately 60 percent) was preserved without further adjustment.

Orders Made

  • Leave to appeal granted.
  • The District Court sentence for the State offence (supply of 3,142.96 grams of THC) was quashed. In its place, the applicant was sentenced to 11 months imprisonment comprising a non-parole period of 6 months and a balance of term of 5 months, commencing 25 October 2021. The non-parole period expired 24 April 2022 and the total term expired 24 September 2022.
  • The commencement date of the Commonwealth sentence (4 years and 6 months with a non-parole period of 2 years and 8 months) was varied pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to commence on 25 October 2021.
  • The earliest date for the applicant's release was fixed at 24 June 2024.

Key Takeaways

  • A mathematical error in applying the totality principle can constitute a ground of appellate error warranting resentencing, even where the individual sentence components may otherwise appear within range.
  • Where State and Commonwealth offences arise from substantially the same circumstances and conduct, the totality principle may support a conclusion that the federal sentence alone is sufficient to capture the overall criminality, reducing the effective weight of the State sentence.
  • The Court of Criminal Appeal confirmed that adjustments on resentencing must be calibrated to give effect to the original sentencing judge's stated intentions, including the intended ratio between the non-parole period and the total term.
  • Subjective circumstances considered by the court included the applicant's young age (21 at the time of offending), Aboriginal descent, diagnoses of Type 1 diabetes and ADHD, disrupted education, and the combined discount of 40 percent for early guilty plea and past assistance.
  • In constructing sentences across mixed Commonwealth and State jurisdiction matters, careful arithmetic when applying the totality principle is essential to avoid unintended outcomes in the overall effective sentence.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Weapons Prohibition Act 1998 (NSW)
- Criminal Code (Cth)
- Judiciary Act 1903 (Cth)

Cases
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48
- 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
- Bott v R [2023] NSWCCA 255
- Salama v R [2023] NSWCCA 141
- El Kheir v R [2019] NSWCCA 288
- Huang v R [2017] NSWCCA 312
- DH v R [2022] NSWCCA 200
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50
- Hughes v R (1983) 49 ALR 110
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146