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Court of Criminal Appeal 19 December 2014

Hutchinson v R

[2014] NSWCCA 317

DrugsFraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE SUPPLY PROHIBITED DRUG DEAL WITH PROCEEDS OF CRIME WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hutchinson v R [2014] NSWCCA 317
Court: Court of Criminal Appeal
Date: 19 December 2014
Judge(s): Hoeben CJ at CL, Fullerton J, Adamson J

Background

The appellant pleaded guilty in the District Court to two offences: supply of MDMA in a commercial quantity (just 2.6 grams below the large commercial quantity threshold of 500 grams), and knowingly possessing the proceeds of crime. Police intercepted a vehicle in which the appellant was travelling toward Dubbo and discovered 497.4 grams of MDMA hidden in the vehicle's roof cavity, along with $4,200 in cash. The appellant admitted the drugs were for supply in Griffith over the following weekend, and that the cash came from prior drug sales.

The sentencing judge applied a 25 per cent discount for the guilty plea and a separate 25 per cent discount for assistance provided to law enforcement, producing a combined reduction of 50 per cent. The final sentence was five years imprisonment with a non-parole period of two years and six months. The appellant then sought leave to appeal on three grounds.

  • Whether the starting point of 10 years imprisonment (before discounts) was manifestly excessive
  • Whether the 25 per cent discount for assistance to law enforcement was inadequate, particularly given that ongoing future assistance had not been separately quantified
  • Whether fresh evidence of post-sentence assistance should be admitted and, if so, whether it rendered the sentence manifestly excessive

Decision

First ground (starting point manifestly excessive): The Court of Criminal Appeal noted that the appellant's counsel ultimately accepted, during the hearing, that it was impossible to contend that "a sentence" as a whole was manifestly excessive when the complaint was directed only at the starting point. The Court found no error in characterising the offending as mid-range in objective seriousness. The appellant was carrying a quantity of MDMA approaching the large commercial threshold, displayed premeditation, used four mobile phones indicating sophistication, and was motivated by profit. The first ground was not pressed and was dismissed.

Second ground (inadequate assistance discount): The Court examined the mandatory considerations under s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and found the sentencing judge had substantially complied with those requirements, even though she did not expressly articulate each consideration. Her Honour had acknowledged the extensive, wide-ranging, and ongoing nature of the assistance and noted the attendant hardship the appellant would likely face in custody. Critically, s 23(3) prohibits a discount for assistance from producing a sentence unreasonably disproportionate to the nature and circumstances of the offence. The Court found that any sentence lower than that imposed would cross that threshold, given the serious drug offending combined with the already generous 50 per cent combined discount and a finding of special circumstances.

Third ground (fresh evidence of post-sentence assistance): This ground was abandoned after the Court drew attention to R v Perez-Vargas (1986) 8 NSWLR 559, which establishes that post-sentence assistance to authorities is a matter for the Executive, not a basis for invoking the principles of fresh or new evidence on appeal in the absence of a sentencing error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a discount for assistance cannot result in a sentence that is unreasonably disproportionate to the nature and circumstances of the offence, and this operates as a ceiling on available leniency regardless of the value of the assistance.
  • A combined discount of 50 per cent for guilty plea and assistance, together with a finding of special circumstances, represented the limit of permissible leniency for serious drug offending near the large commercial quantity threshold.
  • Sentencing judges are not required to articulate each consideration under s 23(2) in express terms, provided there is substantial compliance with the section's intended operation.
  • Assistance provided by an offender after sentence is a matter for the Executive, not the Court of Criminal Appeal: this principle, confirmed in R v Perez-Vargas, bars fresh evidence of post-sentence assistance from enlivening appellate jurisdiction in the absence of a sentencing error.
  • The Court of Criminal Appeal left open, without resolving, the question of whether a combined discount for plea and assistance should ordinarily be capped at 50 per cent, noting that the issue raised in R v Ehrlich and SZ v R remains unsettled.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 23, 44
- Criminal Appeal Act 1912 (NSW), s 5DA

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- LB v R [2013] NSWCCA 70
- Piscitelli v R [2013] NSWCCA 8
- R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
- R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248
- R v Perez-Vargas (1986) 8 NSWLR 559; 25 A Crim R 194
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249