Fitzsimon v The Queen - [2010] NSWCCA 25

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Fitzsimon v R [2010] NSWCCA 25

FILE NUMBER(S):
2008/16310

HEARING DATE(S):
18 February 2010

JUDGMENT DATE:
4 March 2010

PARTIES:
David James Fitzsimon (Applicant)
Crown (Respondent)

JUDGMENT OF:
McClellan CJatCL James J Davies J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1063

LOWER COURT JUDICIAL OFFICER:
Tupman DCJ

LOWER COURT DATE OF DECISION:
21 January 2009

COUNSEL:
C Nash (Applicant)
S Dowling (Respondent)

SOLICITORS:
Ford Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal - appeal against sentence - supply large commercial quantity of prohibited drug - 2 offenders - parity principle - general deterrence and mental health issues - challenge to weight accorded to factors by Sentencing Judge - whether error shown.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes Act 1900

CATEGORY:
Principal judgment

CASES CITED:
House v The King (1936) 55 CLR 499
Lowe v R (1984) 154 CLR 606
R v Engert (1995) 85 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Wright (1997) 93 A Crim R 48
Stephens v R [2009] NSWCCA 240

TEXTS CITED:

DECISION:
(1) Leave to appeal granted. (2) Appeal dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2008/16310
McCLELLAN CJ at CL
JAMES J
DAVIES J
4 MARCH 2010

FITZSIMON v R

Judgment

McCLELLAN CJ at CL: I agree with Davies J.
JAMES J: I agree with Davies J.
DAVIES J: On 19 November 2008 the Applicant pleaded guilty to 2 offences as follows:
[1]Supply not less than a large commercial quantity of a prohibited drug (1.7 kilograms of ecstasy) between 9 March 2007 and 12 May 2007 contrary to s 25(2) Drug Misuse and Trafficking Act 1985;
[2]Supply a prohibited drug (54.84 grams of methylamphetamine) between 18 April 2007 and 12 May 2007 contrary to s 25(1) Drug Misuse and Trafficking Act 1985.
The maximum penalty for the first Count is life imprisonment and there is a standard non-parole period of 15 years. The maximum penalty for the second Count is 15 years imprisonment.
In addition, the Applicant asked the Sentencing Judge to take into account 2 additional charges on the Form 1, namely, 2 charges of supplying 56 grams of methylamphetamine, the first between 1 and 7 April 2007 and the second between 16 and 20 April 2007.
On 21 January 2009 the Applicant was sentenced by her Honour Judge Tupman as follows:
[1]On Count 1 (taking into account the Form 1 offences), sentenced to a non-parole period of 6 years commencing 19 July 2007 and expiring on 18 July 2013 with an additional period of 3 years and 4 months commencing on 19 July 2013 and expiring on 18 November 2016.
[2]On Count 2, sentenced to a fixed term of imprisonment of 2 years commencing 19 July 2007 and expiring 18 July 2009.
On Count 2 her Honour declined to set a non-parole period because she said it would be subsumed within the non-parole period…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fitzsimon v The Queen

Details

AGLC: Fitzsimon v The Queen [2010] NSWCCA 25
Case: [2010] NSWCCA 25
Decision Date: 4 March 2010

CaseChat Overview and Summary

In the case of Fitzsimon v The Queen, the appellant, Fitzsimon, contested the sentence handed down by Her Honour. Fitzsimon was convicted for his involvement in the supply of a large commercial quantity of prohibited drugs, specifically ecstasy and methylamphetamine. The case involved two offenders, Fitzsimon and Ross, who were part of an illicit drug supply enterprise. The appeal against sentence focused on several grounds, including the application of the parity principle, the weight given to certain factors by the Sentencing Judge, and whether there was an error in the sentence.

The primary legal issues before the court were whether the sentence was excessive and whether the Sentencing Judge had erred in the weight accorded to factors such as general deterrence and the mental health issues of the offender. Fitzsimon argued that his sentence should have been more in line with that of his co-offender, Ross, who received a shorter sentence. The court considered whether the Sentencing Judge had appropriately balanced the factors relevant to sentencing and whether there had been an error in the weight given to certain considerations.

The court examined the sentence in light of the maximum penalty and the standard non-parole period, concluding that the sentence did not appear excessive. The court found that the Sentencing Judge had considered the relevant factors, including the role of each offender in the drug supply enterprise, the quantity of drugs involved, and the circumstances of the offences. The court was satisfied that the judge had appropriately balanced the need for general deterrence with the specific circumstances of the offender, including his mental health issues. Therefore, the court found no error in the sentence imposed.

The court granted leave to appeal but dismissed the appeal. The final orders were to grant leave to appeal and to dismiss the appeal, affirming the original sentence.

Orders

Orders of the court

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Background

Background to the litigation

Her Honour sentenced Mr Ross as follows:[1]On Count 1 (taking into account the Form 1 offences), sentenced to a non-parole period of 5 years commencing 11 May 2007 and expiring 10 May 2012 with an additional period of 3 years commencing 11 May 2012 and expiring 10 May 2015. [2]On Count 2, sentenced to a fixed term of 2 years commencing 1 May 2007 and expiring 10 May 2009. Her Honour declined to set a non-parole period on Count 2 for the same reason as she did in the Applicant’s case.Facts and circumstances As one of the grounds of appeal relates to parity it is important to understand the approach her Honour took to the co-offender Ross. The facts and circumstances giving rise to the offences are clearly set out by her Honour as follows:The facts on which I sentence are that each of these two offenders came to notice during a police investigation which occurred over a number of months involving police undercover investigation. The strike force investigation was into the manufacture and supply of prohibited drugs namely ecstasy and methylamphetamine. The investigation included the lawful interception of telephone calls involving a person Richard Monckton who lived on the far north coast of New South Wales in the Lismore/Ballina area. During the course of monitoring his telephone lines, police became aware of this enterprise involving the manufacture and supply of these two drugs. Amongst those who came to light and whose calls were also then monitored was the offender Mr Fitzsimon.The Crown case on the agreed facts before me is that Mr Monckton was heavily involved in these illicit drug activities and was assisted in that enterprise by others including the offenders before me. I accept from the facts that it was Mr Fitzsimon's role in this enterprise to take possession of quantities of the drugs and make them available to Mr Ross to then drive from Sydney and deliver them to Mr Monckton on the north coast. The surveillance indicated that during the period covered by the first count in relation to each of these two offenders, there were four separate occasions on which Mr Fitzsimon and Mr Ross were involved in the supply in this way. Mr Ross was a friend of Mr Fitzsimon and became involved just before 15 March 2007. Mr Fitzsimon on the facts was involved in the supply for only a few days longer, namely from 9 March.Specifically the facts involving this first supply charge are that on 15 March 2007, Mr Fitzsimon arranged for Mr Ross to drive to Mr Monckton on the north coast and there deliver to him 486 grams of ecstasy. This occurred again on 7 April 2007 where Mr Ross delivered 270 grams of ecstasy to Mr Monckton, that having been supplied to him by Mr Fitzsimon. On this occasion he also delivered 56 grams of methylamphetamine also provided to him by Mr Fitzsimon.This is the subject of the first Form 1 offence for each offender. Again on 20 April 2007, Mr Fitzsimon arranged for Mr Ross to take delivery of and drive up to meet Mr Monckton with 405 grams of ecstasy. On that occasion too, he delivered another 56 grams of methylamphetamine. That latter supply of methylamphetamine is the second of the two additional charges in the Form 1 for each of these two offenders. On 11 May 2007, once again Mr Fitzsimon arranged for Mr Ross to deliver ecstasy tablets to Monckton on the north coast. This time the quantity was 596.8 grams. Mr Ross was stopped by police at Normanhurst on his way and the drugs never reached Monckton on this occasion. In total these four occasions amounted to either the actual delivery or attempted delivery to Monckton of approximately 1.7 kilos of ecstasy and these are the facts relevant for the first count in the indictment against each of these offenders namely the charge of supplying the large commercial quantity of ecstasy.As well as delivering or attempting to deliver 596.8 grams of ecstasy on 11 May, Mr Fitzsimon had also given Mr Ross 54.04 grams of methylamphetamine to supply to Mr Monckton. This was also found in his possession when he was arrested at Normanhurst. These facts involving this quantity of methylamphetamine are the relevant facts for the second count in the indictment relevant to each of these two offenders. The day following Mr Ross's arrest, police searched his premises and there located a number of things including 104.1 grams of methylamphetamine and the sum of $4,500 in cash. These facts are the relevant facts for the remaining two additionalForm 1 offences against Mr Ross, namely the deemed supply of this quantity of methylamphetamine on 12 May 2007 and the charge of dealing with the proceeds of crime.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

Considered without reference to those other grounds the sentence, particularly in the light of the maximum penalty and the standard non-parole period, does not appear to be excessive in any way that suggests error on the part of the Sentencing Judge.Conclusion I propose the following orders:(1) Leave to appeal granted.(2) Appeal dismissed.**********

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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