ZZ v R [2024] NSWCCA 25

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: ZZ v R [2024] NSWCCA 25 Hearing dates: 19 February 2024 Date of orders: 28 February 2024 Decision date: 28 February 2024 Before: Harrison CJ at CL at [1] Dhanji J at [2] Huggett J at [68] Decision: (1) Grant leave to appeal. (2) The sentence imposed in the District Court on 24 November 2022 for the offence of supply of a prohibited drug, 3,142.96 grams of tetrahydrocannabinol is quashed and in lieu thereof the applicant is sentenced to a term of imprisonment for 11 months comprising a non-parole period of 6 months and a balance of term of 5 months commencing on 25 October 2021. The non-parole period with respect to this sentence expired on 24 April 2022. The total term expired on 24 September 2022. (3) Pursuant to s 59(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the commencement date of the sentence imposed in the District Court on 24 November 2022 for the offence of attempt to possess a border controlled substance, being 1,559.7 grams of methamphetamine, the substance having been unlawfully imported, is varied. The sentence of 4 years and 6 months with a non-parole period of 2 years and 8 months is to commence on 25 October 2021. (4) The earliest date on which the applicant may be released is 24 June 2024. Catchwords: CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Judiciary Act 1903 (Cth) Weapons Prohibition Act 1998 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002(2002) 56 NSWLR 146; [2002] NSWCCA 518 Bott v R [2023] NSWCCA 255 Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; 224 A Crim R 204; DH v R [2022] NSWCCA 200] Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218 El Kheir v R [2019] NSWCCA 288 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Huang v R [2017] NSWCCA 312 Hughes v R (1983) 49 ALR 110; 10 A Crim R 125 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 Salama v R [2023] NSWCCA 141 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Category: Principal judgment Parties: ZZ (Applicant) Rex (Respondent) Representation: Counsel: T Quilter (Applicant) C Tran (Respondent)