Hitchen v The Queen

[2021] NSWCCA 293

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hitchen v R [2021] NSWCCA 293

Hearing dates:

29 November 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Before:

Bathurst CJ at [1]
Harrison J at [2]
Wilson J at [3]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIME — appeal against sentence — knowingly take part in supply of commercial quantity of methylamphetamine — possess unauthorised firearm — whether error in determining objective seriousness of applicant’s role — manifest excess — parity — where applicant showed limited remorse — where guilty plea entered at late stage —poor prospects of rehabilitation — no error found — appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

Criminal Appeal Act 1912 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

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

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; (1997) 90 A Crim R 587

R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353

Category:

Principal judgment

Parties:

Geoffrey Hitchen (Applicant)
Regina (Respondent)

Representation:

Counsel:
M Voleynik (Applicant)
C Dodds (Respondent)

Solicitors:
Mark Mulock & Co (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/311257

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 753

Date of Decision:

12 October 2020

Before:

Bourke SC DCJ

File Number(s):

2018/311257

Judgment

1. BATHURST CJ: I agree with Wilson J and with Her Honour’s reasons 

2. HARRISON J: I agree with Wilson J.

3. WILSON J: Pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) Geoffrey Hitchen, the applicant, seeks leave to appeal against an aggregate sentence imposed upon him in the District Court sitting at Penrith on 12 October 2020 by his Honour Judge Bourke SC. The sentence, of 6 years imprisonment with a non-parole period (“NPP”) of 3 years and 10 months, comprehended the following offences, with the indicative sentences announced by his Honour noted.

Count	Offence	Max. Penalty	Indicative Sentence
1	Possess unauthorised firearm s 7A(1) Firearms Act 1996 (NSW)	5 years imprisonment	6 months imprisonment
3	Knowingly take part in supply of a prohibited drug in an amount not less than the commercial quantity s 25(2) Drug Misuse and Trafficking Act 1985 (NSW) Taking into account an offence of Deal with the Proceeds of Crime, formerly count 2 on indictment s 193B(2) Crimes Act 1900 (NSW)	20 years imprisonment Standard NPP 10 years --------- 15 years imprisonment	5 years and 10 months imprisonment with a NPP of 3 years and 9 months

4. The indicative sentence for count 1 imported a discount of 25% to recognise the utilitarian value of the plea of guilty, entered at an early stage. The discount on the sentence that would otherwise have been indicated for count 3 reflected a discount of 10%, afforded for a plea of guilty entered at a late stage of proceedings.

5. The aggregate sentence commenced on 11 October 2018 and will expire on 10 October 2024; the NPP expires on 10 August 2022: R v Hitchen [2020] NSWDC 753.

6. The applicant seeks leave to advance three grounds of appeal:

“1. With respect to Count 3, the sentencing judge erred in his findings concerning the role of the applicant.

2. The sentence imposed was manifestly excessive.

3. The applicant has a justifiable sense of grievance when comparing the sentence imposed upon his co-offender, Mr Ross Hitchen.”

The Proceedings Before the District Court

7. The applicant was committed for sentence with respect to the firearms offence, having entered a plea of guilty when the matter was in the Local Court; he was committed for trial with respect to the supply offence, entering his plea of guilty before the District Court.

8. On sentence, the Crown relied upon an Agreed Statement of Facts to establish the circumstances of the offending. The facts found by the sentencing court were taken from that document, a summary of which follows.

9. In 2017 and 2018 the applicant lived with his younger brother and co-offender Ross Hitchen at an address in South Penrith. From 17 August 2017 the brothers were the subjects of electronic surveillance, a listening device having been installed in a car belonging to Ross Hitchen on that date.

10. On 22 January 2018 a conversation between the brothers was intercepted in which there was a discussion about “the step” having been left open. Ross Hitchen complained to the applicant that, “if the cops come here we’ve got real problems. If they come here we’ll be doing twenty”.

11. The following day a further exchange between the applicant and his brother was intercepted. Ross Hitchen told the applicant:

“I’m gunna tell ya one time cunt. And you listen to me right now. If you cause a drama at that house and the coppers come around and I lose my mate’s money and gear I will fucking bury you and fucking disown you. You will have a tribe of cunts wanting to kill you.”

12. In February 2018 the brothers drove to Dandenong in Victoria where, on 16 February 2018 the applicant was recorded telling his brother:

“We need to get our stories straight in case we get stopped. I’ve packed heaps of clothes. It’s no good if you’ve only packed two days clothes.”

13. The pair travelled on to South Australia where they went to an address in Seacliff Park, the home of Colin Price.

14. On 4 June 2018 another conversation was recorded between the brothers. When the applicant told his brother “don’t go then”, Ross Hitchen replied:

“We have to. We’re fucked. You won’t get another dollar till we make the money.”

15. The brothers drove to Dandenong in Victoria.

16. On 5 July 2018 the brothers again drove to the South Australian home of Colin Price, where a conversation between Price and Ross Hitchen concerning the weight of “bottles” was intercepted.

17. Around a fortnight later, the applicant exchanged a series of text messages and phone calls with Levi Millar in which an arrangement was made for the men to meet in Dandenong. A text message sent from Millar to the applicant, evidently after the meeting, complained “That was one short”. There followed, on 8 August 2018, a conversation between the applicant and his brother in which Ross Hitchen urged the applicant to “just ring him”. Hitchen told the applicant, “I’m not driving around all day with gear on me”. The applicant thereafter spoke to Millar on the telephone, with Millar telling the applicant to leave an item in the garbage bin at a particular address.

18. The brothers met with Millar on a later occasion, 10 October 2018, in Dandenong. The applicant carried a toiletries bag to the meeting. After the meeting, two conversations were recorded between the Hitchen brothers. In the first, the applicant remonstrated with his brother, telling him he was “not doing anything, you’re not pulling your weight”. The conversation continued:

“Ross: They’re all my fucking customers, it’s all my fucking shit shut the fuck up. Not pulling my weight. Just make sure your mate pays his fucking bills. I’m sick of listening to your trash.

Geoffrey: Old mate is paying the bill by the way. Except for the fuckin, the other shit’.

Ross: What shit? Well where’s that?

Geoffrey: The fuckin, the thirty over left over [sic]. Will that’s it mate.

Ross: Well fucking sort that out mate

Geoffrey: Well I am gunna I’m gunna ask him about it what more to [sic] you want me to do?

Ross: Well fuckin get it right, get it fuckin work out where it is. We got fuckin, I got bills to pay. I can’t just keep throwing money at this cunt.

Geoffry: Well you’re not throwing money at him. You’ll be paid up square now with the thirty outlaid. Ah owing. That’s what I’m asking about that why I am not taking nothin.”

19. Soon after, the following exchange was intercepted:

“Ross: What do you want to do about this cash.

Geoffrey: Nothin, just take it.. just some cunt owed us it, helpin us out

Ross: Who

Geoffrey: They’re not gonna say anything

Ross: They will say something they’ll take it, they just take it off ya they don’t give a fuck what you say.

Ross: How big is it can you put it down your pants if they fuckin pull us over

Geoffrey: Where is it?

Ross: In there in the glovebox. Just put it down your pants now mate

Geoffrey: I’m not having it the whole way down my fuckin pants, idiot”

20. The following day, 11 October 2018, a covert search warrant was executed at the Hitchen home. In an area under a staircase, or “steps”, police located two bottles containing methylamphetamine in liquid form; two more bottles containing a further amount of the drug in solid form; and a plastic bag with more solid methylamphetamine. The total weight of the drug was 1386.54 grams. The commercial weight specified for methylamphetamine by the Drug Misuse and Trafficking Act 1985 (NSW) is 250 grams.

21. A .177 calibre Baikal single shot air rifle was located under Ross Hitchen’s bed.

22. Later on 11 October 2018 the vehicle in which the brothers were travelling was stopped in Mount Annan and the men were arrested. Ross Hitchen was carrying $15,250 in cash secreted in his underpants. The money, the proceeds of the sale of drugs, was in the joint possession of both brothers.

23. The applicant later told police that the air rifle had been a childhood gift to him and his brother from their father, and had remained in their joint possession thereafter.

24. The applicant acknowledged having been aware of the storage of methylamphetamine in an amount not less than the commercial quantity under the staircase at his home, and that the drug was for the purposes of supply. He was sentenced on that basis.

Other Evidence Before the Sentencing Judge in the Crown Case

25. The Crown tendered the applicant’s criminal histories, from New South Wales and Victoria, and the record of his custodial history since arrest in October 2018. In this State the applicant had a criminal record noting convictions for the possession and self-administration of a prohibited drug, from 1992; together with a drink-driving offence, from 2002. In Victoria, the applicant had been imprisoned in 2015 for trafficking a drug of dependence, receiving a sentence of 21 months imprisonment, with a NPP of 14 months.

26. His custodial history was unremarkable.

27. Also before the court was his Honour’s judgement delivered when sentence was imposed on the applicant’s brother Ross on 3 August 2020. In common with the applicant, Ross Hitchen had been sentenced for possession of the air rifle and knowingly take part in the supply of a prohibited drug, although the latter was with respect to a greater quantity of methylamphetamine, an amount not less than the large commercial quantity, an offence that carries a maximum penalty of life imprisonment. He faced an additional offence of conspiring to manufacture not less than the commercial quantity of methylamphetamine. As with the applicant, an offence of knowingly deal with the proceeds of crime was taken into account against the supply offence when sentence was imposed.

28. Ross Hitchen had entered pleas of guilty to all charges at an early stage and received a 25% discount on sentence for each offence. An aggregate sentence of 10 years and 6 months imprisonment was imposed upon him with a NPP of 6 years and 9 months imprisonment, special circumstances having been found. Indicative sentences announced for individual offences were as follows:

Conspiracy to Manufacture

8 years 6 months; NPP 5 years 6 months;

Knowingly Take Part in Supply

(taking into account Proceeds Crime)

6 years 6 month; NPP 4 years 3 months;

Possess Firearm

6 months.

The Applicant’s Case on Sentence

29. The applicant did not give evidence.

30. He tendered a report from Dr Sam Calvin, Forensic Psychiatrist, dated 11 September 2020, that had been prepared for use at the sentence hearing. Dr Calvin assessed the applicant via a video link on 21 August 2020. The applicant was aged 47 years when he saw Dr Calvin.

31. The doctor took a history from the applicant and recorded that he was the eldest of two brothers by 15 months, and grew up in an underprivileged part of Penrith. His mother died from cancer in around 2000. His father also succumbed to cancer, dying a few years prior to the consultation. The applicant was not married but was involved in a “long-distance relationship” with a woman whom he had met when on holiday in Thailand. Over a period of 6 years prior to entering custody he had travelled to Thailand for 6 months of every year to see his partner. The applicant was not employed immediately prior to his arrest, living from monies he borrowed against the family home. He had previously worked in a number of different jobs, and had both worked in his own business for a time and for his brother in a café.

32. On examination Dr Calvin did not observe any obvious abnormalities in the applicant’s presentation, nor did he seem depressed. There were no delusions or hallucinations and the applicant demonstrated normal cognitive functioning.

33. The applicant’s “psychiatric issues” were said by Dr Calvin to be “predominantly due to his excessive alcohol use” together with interpersonal family difficulties and unresolved grief.

34. The applicant reported some past trauma connected with a riot or gang fight in a Victorian prison that he had witnessed, and during which he had been fearful for his life. He told Dr Calvin that he had locked himself in his cell at the time, but still experienced flashbacks and nightmares connected to the incident.

35. More recently the applicant had watched as his father sickened with cancer and had been unable to cope with his father’s illness and death. The applicant’s brother Ross returned to live at the family home and this worsened the applicant’s mood. He described his brother as “a bully” to whom he “could not say no”.

36. The applicant gave an account of significant alcohol and drug use stating that, by the age of 18, he was addicted to alcohol, drinking large amounts daily. He described symptoms of physiological dependence and, if not able to consume his daily drink of a bottle of vodka and a bottle of wine, would experience withdrawal symptoms such as tremors. He described suffering Delirium Tremens on occasion, for which his brother had taken him to hospital.

37. He reported some drug use, although in a reduced amount in recent years.

38. On entering custody the applicant complained of depressive symptoms and signs of unresolved grief and was commenced upon an antidepressant, Mirtazapine in an amount of 45mg daily.

39. On the basis of the history provided, Dr Calvin thought that the applicant had an Alcohol Use Disorder, with some features of unresolved grief present, although addressed to some extent by antidepressant medication.

40. Dr Calvin concluded:

“The offending appears to have occurred in the context of significant alcohol and interpersonal problems with his brother. Mr Hitchen has poor coping skills and was unable to deal with stress adaptively, instead, he turned to alcohol and drugs.”

41. The doctor thought that the applicant would require on-going treatment for his addictive problems, with his prognosis dependent upon him remaining abstinent from substance abuse, and undertaking meaningful work.

42. The applicant also tendered what appear to be Police Running Sheets recording in a summary way the product of the listening device that had been installed in Ross Hitchen’s car. That document provides some further detail of the conversation recorded on 22 January 2018, referred to at [10] above. Much of the dispute about “the steps” having been left open was connected to Ross Hitchen’s suspicion that the applicant had been drunk, and his insistence that the applicant enter into a rehabilitation facility to address his alcohol abuse. The applicant was recorded telling his brother to “stop screaming” at him, with Ross asking the applicant, “Why do you want to destroy everything that we’ve got”. The applicant threatened to hit his brother, and the discussion ended up in a physical fight in the car. After the fight, Ross Hitchen repeatedly expressed concerns about the applicant’s condition, evidently a reference to his alcohol abuse and the possibility he could be detected drink-driving. Hitchen said, “You can’t fuck up here, believe me. You fuck up and they come here and we are fuckin’ gone”. He also told his brother that “we have work to do” and “we need your head right”.

43. The applicant was driven to Nepean Hospital by his brother, who said that he was worried the applicant would die as a consequence of his drinking.

44. In the early hours of the following day, evidently after the applicant left Nepean Hospital and Ross Hitchen drove him home, the Police Running Sheet recorded the following:

“Geoff: There’s a fucking glass bottle there.

Geoff and Ross get back into the car. Geoff says “Theres [sic] a fucking glass bottle there” and tells Ross if he was anyone else he would glass him. Ross says “I’m gonna tell ya one time cunt And [sic] you listen to me right now. If you cause a drama at that house, ant [sic] the coppas come around and lose my mates money and gear I will fucking bury you and fucking dis own [sic] you and you will have a tribe of cunts wanting to kill you.”

The Remarks on Sentence

45. Having set out the agreed facts of the offences, the sentencing judge observed that, having regard to the maximum penalty and standard NPP specified, the drug offence was clearly a serious one. It related to the applicant’s possession of at least a commercial amount of methylamphetamine, that is, an amount between 250 grams and 500 grams, to be used by the brothers for the purposes of supply, for profit, in what his Honour concluded was an ongoing business. The supply offence of 11 October 2018 was not an isolated incident, and the applicant was thus not entitled to the leniency that might have been afforded to him in other circumstances.

46. Referring to the agreed facts and the listening device product summary that the applicant had tendered, the sentencing judge concluded that the brothers were partners in the business of supplying methylamphetamine, albeit a partnership in which the applicant had the subordinate role. He assessed the gravity of the crime as falling “below the mid-range but not in the lowest range of objective seriousness”. The applicant’s moral culpability was regarded by the sentencing judge as “relatively high”.

47. His Honour observed that the penalty imposed for the supply offence must be increased somewhat to comprehend the offence taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and to acknowledge the need for specific deterrence and the community’s entitlement to retribution.

48. The firearm offence was considered to be one of low objective gravity, particularly since the Crown has conceded in submissions to the sentencing court that it could not be linked to the supply offence as a tool of the drug trade.

49. His Honour set out in detail the contents of Dr Calvin’s report, observing with respect to the applicant’s alcohol use that:

“While the history given to the psychiatrist was not affirmed by the offender on oath, I believe I can attach significant weight to this aspect of it, given that the listening device material contains multiple references to the offender’s alcohol abuse and discussions of whether he required hospital treatment. While I accept that the offender has suffered a major alcohol abuse disorder for some time, and that his offences were committed against that contextual background, this does not of course provide any excuse or mitigation for the seriousness of his offending.”

50. As to remorse, the sentencing judge was not satisfied that the applicant was remorseful. His Honour noted that the applicant had told Dr Calvin that he was remorseful for his actions, but contrasted that hearsay statement and the applicant’s claim to the doctor to have been unaware of his brother’s actions, with the evidence of the applicant’s active participation in the supply of methylamphetamine. His Honour concluded that there was limited evidence of real contrition.

51. The absence of remorse, coupled with the applicant’s history of drug trafficking, caused the sentencing judge to express some uncertainty as to the applicant’s prospects for the future, concluding that the applicant’s prospects of rehabilitation could not be said to be good.

52. His Honour referred to the need for a sentence that would give effect to principles of specific and general deterrence.

53. Having himself sentenced the applicant’s brother and co-offender, the sentencing judge noted:

“Another important factor to be weighed in sentencing this offender is the sentence that I imposed on his brother, Ross Hitchen. On 3 August 2020, I sentenced Ross Hitchen to an aggregate term of ten years six months with a non-parole period of six years nine months. The parity principle requires that the sentence imposed on one offender should not be “out of step” with that imposed on a relevant co offender so as to create a justifiable sense of grievance. However, it is important in applying that principle that I have regard not only to any relevant similarities but also to any relevant differences.”

54. His Honour went on to note the differences in the charges faced by the brothers, and the differing maximum penalty each faced with respect to the supply offences; the more senior role held by Ross Hitchen in the supply offence; the differences in the discounts on sentence awarded to each for the pleas each entered at different stages; and the differing subjective cases, including the applicant’s prior history for drug trafficking. He concluded:

“[…] I am of the view that the indicative sentence for this offender on the supply offence should be slightly less than that applicable to his brother.”

55. Sentence was imposed.

The Application to this Court

56. With respect to ground 1 the applicant argued that he was no more than an assistant to his domineering younger brother, with no independent control over the drugs, and thus it was not open on the evidence before the sentencing court for his Honour to conclude that the applicant was in a partnership with his brother, albeit in a junior position.

57. He contends before this Court that the evidence established that the applicant was subject to the control of his brother with no decision-making power. He points to some of the material in the Agreed facts, and in the Running Sheets tendered to the sentencing court by him to assert that his was clearly the subordinate role. Further, he contends that the subjective evidence, particularly the applicant’s statement to Dr Calvin that his brother was a bully, supported that conclusion.

58. With respect to ground 2 the applicant points to the indicative sentence announced for the supply offence as resulting in a sentence which was manifestly excessive when regard is had to the gravity of the offending and the subjective case before the court. Although conceding the limitations on their use, the applicant referred to sentencing statistics as supportive of a claim of manifest excess, in that only 6.5% of the custodial sentences recorded from September 2018 had a starting point greater than 6 years imprisonment.

59. In support of the parity ground, ground 3, the applicant argues that, given that the criminality attaching to Ross Hitchen’s conduct was greater than that of the applicant, and their subjective cases were “generally similar”, there should have been a greater difference between the penalties imposed upon them than was the case, and he is justifiably aggrieved by the sentence he received in comparison with that imposed upon his brother. It is submitted that the difference in the “starting point” of the sentences for the supply offence indicated for each offender, absent the discount, was “only 2 years and 2 months”, this being inadequate to mark the different cases and the greater role of Ross Hitchen. In support of his contention the applicant relies to a considerable extent on the asserted difference in the respective roles of the brothers in the supply offence.

60. The Crown submits that none of the three grounds can be made out, and each should be dismissed.

61. As to ground 1, the Crown argues that his Honour’s conclusions as to the partnership between the brothers was supported by both the facts and the listening device product and were open to the court. It was submitted that the evidence established that the applicant was an active participant with his brother in the business of supply rather than an individual who did no more than take directions.

62. The Crown submitted that the statistics relied upon by the applicant in support of ground 2 said little about the appropriate range of sentence against which that imposed upon the applicant might be compared. Of greater relevance were the features of the sentencing cases, including the gravity of the offence, involving as it did at least a commercial quantity of a drug that was very destructive in the community; the applicant’s high moral culpability; that the offence was committed in the context of an on-going business of supply and was thus not isolated; that there was another serious offence taken into account against the supply offence; the limited discount on sentence due to the lateness of the plea; and the limited subjective case, where there was no evidence of remorse.

63. With respect to ground 3 the Crown contended that the differences in the cases of the two brothers explained the extent of the difference between the indicative sentences announced with respect to those offences in common to them. Although Ross Hitchen faced a more serious species of the supply charge than did the applicant, and he was held to be in a senior position to the applicant, he received a greater discount on sentence for that offence than did the applicant because of his early plea, and his subjective case was more compelling and deserving of greater mitigation of penalty.

Determination

64. By ground 1 the applicant complains that there was no evidence to support the conclusions drawn by the sentencing judge as to the nature and extent of his role. That is an assertion that overlooks the evidence that was before the sentencing judge, including evidence tendered by the applicant, and fails to acknowledge the conclusions that were available on the whole of the evidence.

65. Counsel for the applicant had argued before the sentencing judge that there was “a paucity of evidence as to what if any role the Offender had in connection with those drugs”. It was asserted that the applicant’s plea did no more than acknowledge that he had been aware of an amount of methylamphetamine stored under the stairs for the purposes of supply that was above the commercial quantity but below the large commercial quantity, against a background of having assisted his brother in the supply of prohibited drugs over ten months.

66. That an offender acknowledges or asserts a particular level of involvement in a criminal enterprise does not necessarily require a sentencing court to impose sentence on the basis of an acceptance of the offender’s assertion. It is a fundamental duty of the judge at sentence to make findings of fact relevant to the exercise of the sentencing discretion: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 at 377 – 378. Plainly the nature of the role played by the applicant was a matter of relevance to the determination of sentence and his Honour was obliged to make factual findings on that issue. He was not obliged to simply adopt the applicant’s assertions. Rather a sentencing court must make factual findings on the basis of the whole of the evidence before it.

67. In the applicant’s case there was both evidence that pointed to the caution with which his unsworn claims should be approached by the court; and evidence that was capable of establishing a greater role in the supply of drugs than he had been prepared to acknowledge.

68. The statement of facts, agreed by the applicant as an accurate summary of the evidence available to the Crown, contained evidence that supported his Honour’s conclusions as to the role of the applicant.

69. The applicant travelled extensively interstate with his brother for the purposes of supplying drugs over a period of months. Some of the intercepted conversations during those journeys clearly point to a joint enterprise between the men, where the applicant undertook duties independent of his brother. On 16 February 2018 when interstate the applicant counselled his brother as to the need to get their “stories straight” against the prospect of the vehicle being stopped by a police patrol. He appeared to offer a mild reprimand to Hitchen, telling him that he (the applicant) had packed “heaps of clothes” but it would be “no good” if Hitchen had with him only “two days clothes”. This conversation, referred to by the sentencing judge in his remarks, is inconsistent with Hitchen having an entirely dominant or directorial role, and the applicant doing no more than he was told.

70. On 4 June 2018 the applicant again appeared to counsel Hitchen or suggest the course he should take when he told him not to go on what was, inferentially, a journey connected with the supply of drugs. Hitchen responded in a way suggestive of a jointly conducted business by saying, “we have to” and “we’re fucked”, and referring to their joint need to make money.

71. In the dealings with Levi Millar described in the agreed facts, it is apparent that the applicant conducted the majority, or all, of the communications with Millar about drug transactions. This conversation, also referred to by the sentencing judge, supports a greater role in the business of supply than that of a mere minion. The same is true of another conversation referred to by the sentencing judge, that of 10 October 2018, when the applicant accused his brother of not pulling his weight. The flavour of that exchange is that of a discussion between two individuals with a mutual interest in their activities. Whilst the co-offender referred in that discussion to “my customers” and “my shit”, he also made reference to an individual who, it seems, was a customer of the applicant’s, about whom there was some concern as to payment of a drug debt.

72. Later on the same day the co-offender asked the applicant what he wanted to do about the cash and was told by the applicant to “take it”. When Hitchen suggested the applicant put the cash “down your pants”, the applicant refused, calling his brother an idiot in the process. The details of this exchange support his Honour’s conclusions.

73. If the listening device summary is considered, further evidence can be discerned that supports the factual findings made by the sentencing judge. Whilst there are records of robust exchanges between the brothers, including what was plainly understood by the police officer who made the summary to be a physical fight between them, the evidence suggests that the applicant was as capable of aggression as his brother. It was, for example, the applicant who began the fight in the car on 22 January 2018 by threatening to, and then hitting, his brother.

74. As to any purported agreement between the Crown and the applicant concerning the basis upon which the applicant was to be sentenced, it is not for the parties to dictate to a sentencing court the conclusions to be reached by that court. It is for the court to determine the factual basis upon which sentence is to be imposed on the basis of all of the evidence before the court. Here, the facts referred to an agreement between the Crown and the applicant, also mentioned in submissions on sentence, concerning the drugs found at the applicant’s house when a search warrant was executed at the premises. It was in these terms:

“The offender agrees that he was aware:

• that the methylamphetamine was stored under the staircase;

• that it was for the purpose of supply;

• that it was a quantity which was not less than a commercial quantity of the drug.”

75. Since the evidence on sentence did not contradict that aspect of the agreed facts, and the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 applied in any event, his Honour’s conclusions reflect it. However, his Honour was not restricted to that single sentence when determining the facts of the offences. He was both entitled and obliged to consider the whole of the evidence. That evidence comfortably supports to the criminal standard the conclusions of the sentencing judge.

76. The applicant submits that his assertion to Dr Calvin as to his brother having bullied him should have been taken by the sentencing judge as supportive of his much lesser role, but that assumes that his Honour accepted that evidence or should have. There was no obligation on the sentencing judge to uncritically accept the applicant’s untested account. The applicant made at least one demonstrably false assertion to Dr Calvin, to the effect that he had been unaware of his brother’s activities, highlighting the need for caution in assessing the applicant’s claims to the doctor.

77. Sentencing courts are not obliged to accept self-serving claims made by offenders to third parties that are not supported by sworn evidence which the Crown has had an opportunity to test: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] – [59]; Imbornone v R [2017] NSWCCA 144 at [3], [9], and [57].

78. Whilst his Honour was prepared to give weight to the applicant’s claims to Dr Calvin as to his abuse of alcohol, he did so only after having expressly referred to the fact that there was other evidence supportive of that aspect of the history, being the frequent references recorded in the listening device material to the applicant’s alcoholism. There was nothing in the evidence other than the applicant’s assertion to Dr Calvin about being bullied that established that the relationship between the brothers was one of dominance by Ross Hitchen. To the contrary, exchanges between the brothers recorded in the evidence before the court went to undermine the applicant’s claims in that regard, including those in which Hitchen expressed concern for the applicant’s well-being and the effects on his health of his excessive alcohol consumption. Whilst the language used between the men was often rough, that does not detract from what seem to have been genuine concerns for the applicant that his brother held. The relationship established by the evidence could not be characterised as one of dominance and subservience.

79. In short, the conclusion of the sentencing judge that the applicant was a junior member of a partnership with his brother to supply drugs was well open on the uncontested documentary evidence tendered by the parties. If the applicant sought to persuade the sentencing court of a different position on balance, it was open to him to give evidence on the subject, and submit to being cross-examined: Munro v R [2006] NSWCCA 350 at [17] – [19]. He chose not to take that course.

80. Ground 1 cannot be made good.

81. Ground 2 asserts that the aggregate sentence imposed upon the applicant was manifestly excessive, an error with its origins in the excessive sentence indicated for the supply offence. The applicant relies significantly upon statistics held by the Judicial Commission to make good that complaint.

82. This Court was provided by the applicant with statistics relating to sentences imposed in the higher courts of New South Wales between 24 September 2018 and 30 September 2020 for an offence of “s 25(2) supply or knowingly take part in supply, prohibited drug (non-cannabis leaf) commercial qty SNPP post-Muldrock”. The statistics for “All Offenders” rely upon 216 cases and demonstrate that 78.2% of offenders received a custodial sentence. Of 169 offenders who received a term of imprisonment, 16.6% were sentenced to a term of 6 years imprisonment or more. Of 158 sentences recorded in statistics relating to the NPP imposed, 17.2% received a NPP greater than 42 months, the applicant having received a NPP of 46 months.

83. In assessing whether the sentence imposed upon the applicant is manifestly excessive, the bare statistical data relied upon by the applicant is almost entirely without meaning. As a starting point, the sentences reflected by the statistics were imposed for an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act, rather than for an offence of that nature taking into account a proceeds of crime offence, and comprehending in the aggregate sentence a firearms offence. That feature alone renders the statistics of little or no utility.

84. There are other limitations however, and nothing can be gleaned from the statistics concerning features of great importance to the exercise of the sentencing discretion. Of those features that are unhelpfully opaque in the statistical data is information as to the nature of the drug, other than that it was not cannabis leaf; the quantity of the drug, other than that it was not less than the commercial quantity for the particular drug; the nature of the supply, a critical feature given that the definition of supply in s 3 of the Act captures a wide range of conduct, of differing levels of gravity and moral blameworthiness; whether a discount on sentence of more or less that the 10% afforded the applicant was involved; or anything at all about the individual subjective cases.

85. A claim of manifest excess cannot be determined by reference to statistical graphs; the sentencing exercise is much more complex and much more individualised than such an approach can comprehend. It is of little or no assistance to this Court to be pointed to such material in the absence of any detail concerning the cases reflected by the data. The limited utility of statistics is or ought to be well understood: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, at [55]; Owen v R [2017] NSWCCA 54 at [72]; and countless other decisions of this Court that make that point.

86. The applicant was sentenced for a very serious drug crime, with another serious crime taken into account, and a firearms offence. Nothing in the statistics establishes that the sentence imposed upon him was unfair or unjust. Neither does consideration of all of those matters relevant to the determination of the sentence imposed establish that proposition.

87. This ground has not been established.

88. The applicant’s final proposed ground complains that, when the sentence indicated for the supply offence for which he was sentenced is compared to that indicated for the supply offence faced by his brother, the applicant is justifiably aggrieved because of an erroneous degree of disparity in the sentences imposed upon each. He contends that his sentence should have been considerably lower than that imposed upon Ross Hitchen.

89. The first difficulty the applicant faces in making that contention good is that both he and Ross Hitchen were sentenced by the same judge, and his Honour was well aware of the requirement for consistency of punishment, referring specifically to the parity principle in his remarks.

90. A similar situation was considered by this Court in Chamon v R [2020] NSWCCA 112, where R A Hulme J (with whom I agreed; Hamill J in dissent, but not as to these principles) said, at [34] – [37]:

“The principles that apply are conveniently encapsulated in the following passage in the judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]:

"In Lowe v The Queen [(1984) 154 CLR 606] and in Postiglione v The Queen [(1997) 189 CLR 295], this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen [2010) 77 NSWLR 540 at 588-589 [201]-[203]], there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged."

This Court has observed that "considerable obstacles" are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing).

In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it.

In Lloyd v R [2017] NSWCCA 303, I observed (at [95]), with the agreement of Payne JA and Garling J, that a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. That observation is apposite in the present case. I went on to say (at [96]-[97]:

"It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise.

In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?””

91. Here, his Honour was both conscious of, and applied, the parity principle. He had regard to relevant similarities between the two cases, and also relevant differences, concluding that the difference in sentence with respect to the supply offences faced by the brothers should be modest, with the indicative sentence noted for the offender “slightly less than that applicable to his brother”.

92. In reaching that conclusion the sentencing judge considered the differences in the totality and nature of the charges; the differences in the role of each brother; the lesser discount on sentence afforded to the applicant as compared to that afforded his brother; the distinction between the criminal histories of the brothers, with the applicant having been previously imprisoned for drug trafficking where his brother had no criminal record for such offending; and the differing subjective cases.

93. As to the latter, Ross Hitchen presented a stronger subjective case than did the applicant. Where there was no evidence of the applicant being remorseful or contrite for his offending, his brother had some, albeit limited, evidence of remorse; and where the applicant’s prospects of rehabilitation were uncertain, his brother was regarded as having reasonable prospects for the future.

94. All of these distinctions were weighed carefully by the sentencing judge, with his Honour determining sentences for each offender in light of that consideration.

95. The degree of differentiation in the sentences imposed upon the brothers was open to the sentencing judge in the exercise of the discretion that reposed in the court. There is nothing in the cases that were before his Honour that supports, on an objective analysis, a justified sense of grievance.

96. This ground has not been made out.

Conclusion

97. Although I would grant leave to the applicant to appeal, the appeal should be dismissed.

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Decision last updated: 10 December 2021