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Court of Criminal Appeal 14 February 2024

R v Zycki

[2024] NSWCCA 9

Drugs

Citation: R v Zycki [2024] NSWCCA 9
Court: Court of Criminal Appeal
Date: 14 February 2024
Judge(s): Adamson JA; Wright J; Sweeney J

Background

The respondent pleaded guilty in the District Court to one count of supplying a commercial quantity of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). At sentencing on 6 October 2023, Judge Mahony SC was asked to take into account four additional offences listed on a Form 1 document under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A Form 1 is a procedural mechanism that allows a sentencing court to take related offences into account when imposing a principal sentence, without those offences being separately sentenced.

One of the four Form 1 offences was supplying a large commercial quantity of MDMA, also under s 25(2) of the Drug Misuse and Trafficking Act. That offence carries a maximum penalty of life imprisonment. Neither the parties' legal representatives nor the sentencing judge identified the problem at the time.

The Crown filed a timely appeal on 31 October 2023. The sole ground was that the sentencing process had miscarried because an offence punishable by life imprisonment had been improperly placed on the Form 1.

  • Whether s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits a court from taking into account, on a Form 1, any offence that carries a maximum penalty of life imprisonment.
  • Whether the erroneous inclusion of such an offence on the Form 1 caused the sentence to miscarry.
  • Whether the appropriate remedy was remittal to the District Court for resentencing.

Decision

Section 33(4)(b) of the Crimes (Sentencing Procedure) Act expressly prohibits a court from taking a further offence into account under s 33 if that offence is punishable by imprisonment for life. Both parties accepted that the MDMA supply offence fell squarely within that prohibition and that its inclusion on the Form 1 was an error.

Both parties also agreed that the error caused the sentencing process to miscarry, and that the appropriate course was to quash the sentence and remit the matter to the District Court for resentencing. The Court of Criminal Appeal agreed, noting that this approach was consistent with its own prior decisions in R v Issa, Clappison v R, Paul Campbell v R, and R v JH.

The Court noted an additional reason for remittal rather than resentencing at the appellate level: it is for the Director of Public Prosecutions to decide whether and how to proceed with the MDMA supply offence that was improperly included on the Form 1. That prosecutorial decision appropriately sits with the DPP, not the appellate court.

Orders Made

  • The appeal was allowed.
  • The sentence imposed in the District Court on 6 October 2023 was quashed.
  • The matter was remitted to the District Court for resentencing pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW).
  • The matter was listed for mention in the Sydney District Court arraignment list at 9:30am on Friday, 23 February 2024.

Key Takeaways

  • Under s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court is expressly prohibited from taking into account on a Form 1 any offence that carries a maximum penalty of life imprisonment.
  • Where a life-sentence offence is erroneously included on a Form 1, the sentencing process miscarries and the resulting sentence cannot stand.
  • Consistent with a line of authority including R v Issa, Clappison v R, Paul Campbell v R, and R v JH, remittal to the District Court for resentencing is the appropriate remedy in such circumstances.
  • The decision to proceed with, or otherwise deal with, an offence improperly placed on a Form 1 rests with the Director of Public Prosecutions, not the Court of Criminal Appeal.
  • In dismissing errors of this kind, the Court observed that the prohibition in s 33(4)(b) was not detected by either party's legal representatives or the sentencing judge, underscoring the importance of scrutinising Form 1 offences for compliance with the statutory requirements before sentence is imposed.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D, s 12(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33, s 33(4)(b)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases:
- R v Issa [2002] NSWCCA 206
- Clappison v R [2017] NSWCCA 33
- Paul Campbell v R [2018] NSWCCA 87
- R v JH [2021] NSWCCA 299