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Court of Criminal Appeal 14 December 2022

Hitchen v R

[2023] NSWCCA 51

DrugsFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE LOW PURITY OF DRUG RELEVANCE TO OBJECTIVE SERIOUSNESS NO ERROR CRIME

Citation: Hitchen v R [2023] NSWCCA 51
Court: NSW Court of Criminal Appeal
Date: 14 December 2022 (reasons delivered 2023)
Judge(s): Simpson AJA; Harrison J; Fagan J

Background

The appellant pleaded guilty in the District Court at Penrith to three offences: conspiracy to manufacture not less than the commercial quantity of methylamphetamine, knowingly taking part in the supply of a large commercial quantity of methylamphetamine, and possession of an unauthorised firearm. A money laundering offence was also taken into account on sentence.

The offences arose from a clandestine drug manufacturing operation run from a co-offender's home in south-western Sydney. Surveillance evidence showed the appellant made repeated visits to the premises, purchased chemicals and equipment, and stored drug product and manufacturing equipment at his home. Three co-offenders were also involved, though they faced different charges and received substantially different sentences.

The sentencing judge imposed an aggregate term of 10 years and 6 months with a non-parole period of 6 years and 9 months, after applying a 25% discount for the guilty plea. The appellant sought leave to appeal on seven grounds, including manifest excess, parity with co-offenders, and errors in the treatment of remorse and the standard non-parole period.

  • Whether the low purity of the methylamphetamine seized was relevant to the objective seriousness of the offending, and whether the sentencing judge erred in the absence of evidence about standard purity
  • Whether the sentence was manifestly excessive when compared to sentences imposed on co-offenders, given the stark differences in charges and outcomes
  • Whether the sentencing judge erred by giving limited weight to the appellant's remorse and contrition, where the appellant did not give evidence at the sentencing proceedings
  • Whether the sentencing judge misapplied a standard non-parole period to the conspiracy offence, and whether conspiracy offences are in fact subject to a standard non-parole period

Decision

Drug purity and objective seriousness: The Court found no error in the sentencing judge's approach to the low purity of the drug. Without evidence of a standard or baseline purity for methylamphetamine, it was not possible to draw meaningful comparisons, and the sentencing judge was not obliged to treat low purity as a mitigating factor in the absence of such a benchmark.

Remorse and contrition: The Court held that limited weight given to remorse where the offender did not give evidence at sentencing was a proper exercise of the sentencing discretion. No error was established on this ground.

Standard non-parole period for conspiracy offences: The Crown conceded that the sentencing judge had applied an inapplicable standard non-parole period to the conspiracy offence. The Court found it unnecessary to determine whether conspiracy offences under the Drug Misuse and Trafficking Act are subject to a standard non-parole period, because the appeal succeeded on other grounds requiring resentencing in any event.

Parity and manifest excess: This ground succeeded. The Court found that the dramatic differences between the charges brought against the appellant and those brought against his co-offenders, combined with the stark differences in sentencing outcomes, produced a justifiable sense of grievance. On resentencing, and having regard to comparable decisions, the Court arrived at an indicative head sentence of 6 years for the conspiracy charge and 3 years for the supply charge. Noting that the criminality in the supply charge was largely comprehended within the conspiracy, the sentences were run with very substantial concurrence, producing an aggregate of 6 years and 6 months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed; sentence imposed in the District Court on 3 August 2020 quashed
  • Appellant sentenced to an aggregate term of imprisonment of 6 years and 6 months, commencing 11 October 2018 and expiring 10 April 2025, with a non-parole period of 4 years and 2 months, which expired on 10 December 2022
  • Appellant eligible for release on parole

Key Takeaways

  • Parity principles can justify a sentence reduction where co-offenders faced dramatically different charges and substantially lighter sentencing outcomes, even where the underlying criminal enterprise was shared.
  • In the absence of evidence establishing a standard or typical purity for methylamphetamine, a sentencing court is not required to treat low purity as a mitigating factor bearing on objective seriousness.
  • Limited weight given to an offender's claimed remorse where the offender does not give evidence at sentencing constitutes a proper exercise of sentencing discretion and does not of itself amount to error.
  • The Court of Criminal Appeal found it unnecessary to resolve whether conspiracy offences under the Drug Misuse and Trafficking Act attract a standard non-parole period, leaving that question open.
  • Where the criminality of one offence is substantially encompassed within another, sentencing courts may apply very substantial concurrence between the indicative terms when constructing an aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 25(2), 26
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 21A, 25D, 44, 53A, 166, Pt 3 Div 3, Pt 4 Div 1A
- Crimes Act 1900 (NSW), s 193B
- Firearms Act 1996 (NSW), ss 7A, 39
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Term) Act 2002 (NSW), Sch 1
- Interpretation Act 1987 (NSW), s 34

Cases:
- Hitchen v R [2021] NSWCCA 293
- Meis v R [2022] NSWCCA 118
- Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
- R v Ohar (2004) 59 NSWLR 596; [2004] NSWCCA 83
- R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- Imbormone v R [2017] NSWCCA 144
- El Kheir v R [2019] NSWCCA 288
- Vaiusu v R [2017] NSWCCA 71
- Alvares v R [2011] NSWCCA 33
- Butters v R [2010] NSWCCA 1
- R v Edwards (1996) 90 A Crim R 510
- R v Stafrace (1997) 96 A Crim R 452