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Hitchen v The Queen

Hitchen v The Queen

Case [2021] NSWCCA 293 10 December 2021

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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

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

The indicative sentence for count 1 imported…

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 Hitchen v The Queen

Details

AGLC: Hitchen v The Queen [2021] NSWCCA 293
Case: [2021] NSWCCA 293
Decision Date: 10 December 2021

CaseChat Overview and Summary

The appellant, Hitchen, appealed against his sentence for knowingly participating in the supply of a commercial quantity of methylamphetamine and possessing an unauthorised firearm. The High Court of Australia reviewed the matter to determine whether there was an error in the assessment of the objective seriousness of Hitchen’s role in the crime. The case hinged on the interplay between the sentencing principles of objective seriousness, parity, and the appellant's personal circumstances, such as his late guilty plea and limited remorse. The court needed to decide whether the sentence was a manifest excess and whether it complied with the principle of parity, comparing it to similar cases.

The court examined the trial judge's determination of Hitchen’s role in the supply chain and assessed whether this assessment was correct. It considered the factors influencing the objective seriousness, including the scale of the drug supply and the possession of an unauthorised firearm. The court also scrutinised the sentencing judge’s consideration of Hitchen’s prospects for rehabilitation, his limited remorse, and the timing of his guilty plea. In determining whether the sentence was a manifest excess, the court applied the principle of parity, comparing Hitchen’s sentence with those of other offenders involved in similar criminal activities.

After careful consideration, the court found no error in the trial judge’s assessment of Hitchen’s role or in the application of the sentencing principles. The court determined that the sentence was neither a manifest excess nor did it violate the principle of parity. Given Hitchen’s poor prospects for rehabilitation, limited remorse, and the late stage at which he entered his guilty plea, the court concluded that the sentence was appropriate. The appeal was dismissed, and the original sentence was upheld.

Orders