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District Court 12 October 2020

R v Hitchen

[2020] NSWDC 753

DrugsFirearms & weapons
CRIME SENTENCE PARITY SUPPLY LARGE COMMERCIAL QUANTITY POSSESS UNAUTHORISED FIREARM

Citation: R v Hitchen [2020] NSWDC 753
Court: District Court of New South Wales
Date: 12 October 2020
Judge: Bourke SC DCJ

Background

The offender, Geoffrey Hitchen, was sentenced for two offences arising from a joint drug operation he conducted with his brother, Ross Hitchen, between 2017 and 2018. The brothers lived together in South Penrith and, as revealed through an extensive police surveillance operation, were involved in the storage and supply of large quantities of methylamphetamine, including travel to Victoria and South Australia in connection with that activity.

Police executed a covert search warrant at the family home on 11 October 2018, uncovering approximately 1,386 grams of methylamphetamine stored under a staircase in the garage. It was agreed that Geoffrey Hitchen knew the drug was there, knew it was for supply, and knew it was at least a commercial quantity. Police also found a .177 calibre air rifle in the home, jointly possessed by the brothers since childhood.

Geoffrey Hitchen pleaded guilty to knowingly taking part in the supply of not less than the commercial quantity of methylamphetamine, and to possessing an unauthorised firearm. He also asked the court to take into account, on a Form 1, an offence of knowingly dealing with proceeds of crime, arising from $15,250 cash found on his brother and agreed to be jointly held proceeds of past drug sales.

  • What was Geoffrey Hitchen's objective role in the drug supply operation, and how did that affect the objective seriousness of his offending?
  • What guilty plea discounts applied to each offence?
  • How should the parity principle apply, given that his brother Ross had already been sentenced for a more serious (large commercial quantity) supply offence?
  • What aggregate sentence, including non-parole period, was appropriate having regard to totality, special circumstances, and the relevant subjective factors?

Decision

His Honour found that Geoffrey Hitchen played a lesser but genuine role in the drug supply operation. Ross Hitchen occupied the more senior position, directing the enterprise and holding the primary relationships with customers and suppliers. Geoffrey nonetheless knowingly participated over an extended period, assisted with logistics including interstate travel, and communicated directly with at least one recipient (Levi Millar) in arranging transactions.

On the question of parity, His Honour had regard to the sentence previously imposed on Ross Hitchen, whose indicative sentence for the supply offence was six years and six months with a non-parole period of four years and three months. Several factors distinguished Geoffrey's position: he received only a 10% plea discount on the drug charge (compared to Ross's 25%), and he had a prior imprisonment for drug trafficking, which Ross did not. On the other hand, Geoffrey held the lesser role. Balancing these matters, His Honour held that the indicative sentence for Geoffrey should be slightly below that applicable to his brother.

The firearms offence was assessed as low in objective seriousness. The air rifle had been in the family since childhood and there was no suggestion it was connected to the drug operation. His Honour found that some accumulation of sentences was appropriate given the separate criminality involved, but that accumulation should be modest given the firearm's low seriousness.

Special circumstances were found to exist, based on Geoffrey Hitchen's alcohol and substance use problems, justifying a non-parole period that departed from the standard statutory ratio. This would allow for adequate supervision and support upon release.

Orders Made

  • Aggregate head sentence of six years, commencing 11 October 2018 and expiring 10 October 2024.
  • Non-parole period of three years and ten months, expiring 10 August 2022.
  • Indicative sentence for the drug supply offence (including the Form 1 matter): five years and ten months, with a non-parole period of three years and nine months.
  • Indicative sentence for the firearms offence: six months.

Key Takeaways

  • The District Court applied the parity principle carefully, comparing Geoffrey Hitchen's sentence to that already imposed on his co-offender brother, while accounting for differences in role, plea timing, and criminal history.
  • A lesser role in a joint drug supply enterprise does not insulate an offender from a substantial sentence where participation was knowing, sustained, and integral to the operation.
  • Plea discounts are assessed individually: Geoffrey's later guilty plea on the drug charge attracted only 10%, while his early plea on the firearms charge earned 25%, directly affecting the comparison with his brother's sentence.
  • Where two offences involve separate criminality, some accumulation of sentences is appropriate under totality principles, even where one offence is assessed as low in objective seriousness.
  • Special circumstances justifying a reduced non-parole period ratio can be established on the basis of a need for post-release supervision related to substance use, beyond the mere fact of a first custodial sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Weininger v The Queen [2003] 212 CLR 629