AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 10 December 2021

Hitchen v R

[2021] NSWCCA 293

DrugsFirearms & weapons

Citation: Hitchen v R [2021] NSWCCA 293
Court: Court of Criminal Appeal, NSW
Date: 10 December 2021
Judge(s): Bathurst CJ, Harrison J, Wilson J

Background

The applicant was sentenced in the District Court at Penrith in October 2020 for two offences: knowingly taking part in the supply of methylamphetamine in a commercial quantity (over 1,386 grams, well above the 250-gram commercial threshold), and possessing an unauthorised firearm. An offence of dealing with the proceeds of crime was also taken into account.

The applicant had lived with his brother and co-offender at a South Penrith address. Over an extended period from 2017 to 2018, electronic surveillance captured conversations between the brothers that established the applicant's involvement in transporting, handling, and arranging the sale of the drug. Police executing a search warrant located the methylamphetamine stored under a staircase at the home. The applicant acknowledged awareness of the drugs and their purpose.

The sentencing judge imposed an aggregate sentence of six years imprisonment with a non-parole period of three years and ten months. The indicative sentence for the supply offence was 15 years, reduced by ten percent to reflect a late guilty plea, producing an indicative term of five years and ten months. The applicant sought leave to appeal on three grounds.

  • Whether the sentencing judge erred in assessing the objective seriousness of the applicant's role in the drug supply offence
  • Whether the aggregate sentence was manifestly excessive
  • Whether the applicant had a justifiable sense of grievance arising from a disparity between his sentence and that imposed on his co-offending brother

Decision

On the first ground, the Court of Criminal Appeal found no error in the sentencing judge's assessment of the applicant's role. The intercepted conversations demonstrated ongoing, active participation in the drug operation, including travelling interstate, arranging meetings with customers, carrying drugs to transactions, and managing outstanding debts. The sentencing judge was entitled to conclude the applicant played a significant, though not leading, role.

On manifest excess, the Court found the sentence was within the range reasonably open to the sentencing judge. The applicant's prior Victorian imprisonment for drug trafficking, his late guilty plea (attracting only a ten percent discount rather than a larger utilitarian discount), his limited remorse, and his poor prospects of rehabilitation all supported the sentence imposed. The Court identified no error in the exercise of the sentencing discretion.

On parity, the Court considered the principles governing co-offender sentencing, noting that the question is not what the appellate court would have done but whether the differentiation made was open to the sentencing judge. The sentencing judge had carefully compared the two brothers, accounting for differences in role, criminal history, plea timing, discount received, and subjective circumstances. The brother presented a stronger subjective case, with some evidence of remorse and better rehabilitation prospects. Those distinctions justified the modest difference in sentence.

The Court granted leave to appeal but dismissed the appeal.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's findings on the applicant's role where intercepted communications showed sustained, active participation in a commercial drug operation over an extended period.
  • A late guilty plea attracted only a ten percent sentence discount, significantly less than the twenty-five percent discount afforded for an early plea on a separate count, reflecting the limited utilitarian value of the late plea.
  • Under the parity principle, the appellate court's role is not to substitute its own view of the appropriate sentence but to assess whether the degree of differentiation between co-offender sentences was within the range open to the sentencing judge.
  • Differences in criminal history, including a prior drug trafficking imprisonment, combined with limited remorse and poor rehabilitation prospects, properly supported a heavier sentence relative to a co-offender with a stronger subjective case.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a justified sense of grievance cannot be established on the parity ground where the sentencing judge has carefully identified and weighed the relevant similarities and differences between co-offenders.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)

Cases
- Chamon v R [2020] NSWCCA 112
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Imbornone v R [2017] NSWCCA 144
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Munro v R [2006] NSWCCA 350
- Owen v R [2017] NSWCCA 54
- R v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- R v Hitchen [2020] NSWDC 753
- R v Isaacs (1997) 41 NSWLR 374
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353