Legal Research
Cases
Hawker v The Queen

Hawker v The Queen

Case [2022] VSCA 127 30 June 2022

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0141

RODNEY CRAIG HAWKER	Appellant
v
THE QUEEN	Respondent

---

JUDGES:	T FORREST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2022
DATE OF JUDGMENT:	30 June 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 127
JUDGMENT APPEALED FROM:	[2021] VCC 1493 (Judge Cannon)

---

CRIMINAL LAW – Appeal – Sentence – Two counts of trafficking drug of dependence and one of possessing drug of dependence – Upon guilty plea sentenced to 3 years and 3 months’ imprisonment with 15 months non-parole – Whether manifestly excessive – Significant quantity of drug – Serious example of offending – Collection of mitigatory factors including delay, remorse, plea during pandemic and impact of pandemic, rehabilitation prospects, and hardship in prison due to diagnosed psychological conditions – Where judge rejected combination sentence of custody and community corrections order – Consideration of low proportion of non-parole period to head sentence – Sentence within range − Appeal refused.

---

Counsel
Appellant:		Mr PJ Smallwood
Respondent:		Mr JCJ McWilliams
Solicitors
Appellant:	Markotich Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

T FORREST JA

MACAULAY JA:

Introduction

Rodney Hawker, the appellant, was found in possession of 5.7 kg of heroin (in powder and tablet form), 15.8 grams of methylamphetamine (‘ice’) and 26.2 grams of ‘GHB’. He contends that the sentences of 3 years on a charge of trafficking heroin and
12 months on a charge of trafficking ice, and an order to serve 3 months of the latter cumulatively upon the former, are each individually manifestly excessive. Bearing in mind the quantity of heroin and that the trafficking charges each carry a maximum term of imprisonment of 15 years, on those bare facts his contention appears to take on a substantial challenge. In our view, for the reasons we give, his contention fails to overcome that challenge and it ought not be upheld.
In further detail, the appellant pleaded guilty in the County Court to two charges of trafficking in a drug of dependence (heroin and methylamphetamine respectively) and one charge of possessing a drug of dependence (1,4-butanediol). Summary charges were uplifted to the Court and the appellant pleaded guilty to those charges also. They were for dealing with the suspected proceeds of crime ($3,870), unlicensed driving and possessing a controlled weapon (a baseball bat). The appellant was sentenced as follows:

Charge	Offence	Maximum Penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence (heroin)[1]	15 years’ imprisonment	3 years	Base
2	Trafficking in a drug of dependence (methylamphetamine)[2]	15 years’ imprisonment	1 year	3 months
3	Possession of a drug of dependence (1,4-butanediol)[3]	1 year’s imprisonment or 30 penalty units or both[4]	1 month	Nil

[1]Contrary to Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1).

[2]Ibid.

[3]Ibid s 73(1).

[4]Section 73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 applied upon the finding by the sentencing judge that the possession was not for a purpose related to trafficking.

Related Summary Offences
8	Deal…

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 Hawker v The Queen

Details

AGLC: Hawker v The Queen [2022] VSCA 127
Case: [2022] VSCA 127
Decision Date: 30 June 2022

CaseChat Overview and Summary

The case of Hawker v The Queen involves an appeal against a sentence imposed following a guilty plea to two counts of trafficking a drug of dependence and one count of possessing a drug of dependence. The sentencing judge imposed a total imprisonment term of 3 years and 3 months with a non-parole period of 15 months. The appellant challenged the sentence as manifestly excessive, contending that the judge did not sufficiently consider various mitigating factors.

The court was required to determine whether the sentence was manifestly excessive and whether the judge failed to appropriately consider the mitigating factors presented. These factors included the delay in bringing the case to trial, the appellant's remorse, the timing of the plea during the COVID-19 pandemic, the impact of the pandemic, the appellant's prospects for rehabilitation, and the hardship faced in prison due to diagnosed psychological conditions. The judge had rejected an alternative sentence that combined custody with a community corrections order.

The court found that the judge had properly considered the relevant principles and had given significant weight to the mitigating factors. The judge also noted the seriousness of the offending and the need for general deterrence. The court determined that the sentence was within the range of appropriate penalties for such offences. The low proportion of the non-parole period to the head sentence did not render it manifestly excessive. Consequently, the appeal was dismissed.

No further orders were made.

Orders