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Hitchen v The The King

Hitchen v The The King

Case [2023] NSWCCA 51 14 December 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hitchen v R [2023] NSWCCA 51
Hearing dates: 20 April 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Before: Simpson AJA at [1]
Harrison J at [117]
Fagan J at [118]
Decision:
1. Leave to appeal against sentence granted;
2. Appeal allowed, sentence imposed in the District Court on 3 August 2020 quashed;
3. The applicant be sentenced to an aggregate term of imprisonment for 6 years and 6 months commencing on 11 October 2018 and expiring on 10 April 2025 with a non-parole period of 4 years and 2 months which expired on 10 October 2022.
4. The applicant is eligible for release on parole.

Catchwords:
CRIME – appeals – appeal against sentence – knowingly take part in supply of prohibited drug – conspiracy to manufacture prohibited drug – low purity of drug - relevance to objective seriousness – no evidence of standard purity of methylamphetamine – no error
CRIME – appeals – appeal against sentence – manifest excess – parity considerations – dramatic differences in charges faced by co-offenders – stark differences in sentencing outcomes – appeal allowed – resentencing
SENTENCING – appeal against sentence – limited weight given to evidence of remorse and contrition where offender did not give evidence in sentencing proceedings – proper exercise of sentencing discretion – no error
SENTENCING – appeal against sentence – non-parole period – error regarding application of inapplicable non-parole period conceded – whether conspiracy offences are subject to a non-parole period – no need to determine issue

Legislation Cited:
Crimes Act 1900 (NSW), ss 19A, 26, 193B
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 21A, 25D, 44, 53A, 166, Pt 3 Div 3, Pt 4 Div 1A
Crimes (Sentencing Procedure) Amendment (Standard Minimum Term) Act 2002 (NSW), Sch 1
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW), ss 7A, 39
Interpretation Act 1987 (NSW), s 34

Cases Cited:
Alvares v R [2011] NSWCCA 33
Butters v R [2010] NSWCCA 1
DA C v R [2006] NSWCCA 265
El Kheir v R [2019] NSWCCA 288
Hitchen v R [2021] NSWCCA 293
IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107
Imbormone v R [2017] NSWCCA 144
Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
Meis v R [2022] NSWCCA 118
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pfitzner v R [2010] NSWCCA 314
R v Edwards (1996) 90 A Crim R 510
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
R v Stafrace (1997) 96 A Crim R 452
TS v R [2007] NSWCCA 194
Vaiusu v R [2017] NSWCCA 71

Category: Principal judgment
Parties: Ross Hitchen (Applicant)
The Crown (Respondent)
Representation:
Counsel:
T Kent (Applicant)

E Wilkins SC…

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 The King

Details

AGLC: Hitchen v The The King [2023] NSWCCA 51
Case: [2023] NSWCCA 51
Decision Date: 14 December 2022

CaseChat Overview and Summary

The appellant was convicted of conspiring to manufacture and supply a prohibited drug, specifically methylamphetamine, along with several co-defendants. The appellant appealed against his sentence, arguing it was manifestly excessive and that there were parity issues between the sentences of the co-offenders. The High Court of Australia was tasked with determining whether the sentence was legally sound and whether there were any errors in the application of sentencing principles.

The legal issues before the court included whether the sentence was manifestly excessive, whether the trial judge gave sufficient weight to the evidence of remorse and contrition, and whether there was an error in the application of the non-parole period. The court needed to assess if the trial judge correctly considered the appellant's role in the conspiracy, the low purity of the drug, and the parity between the sentences of co-offenders. Additionally, the court had to consider if the appellant's lack of evidence during the sentencing proceedings affected the weight given to his remorse and contrition.

The court found that there was no error in the trial judge's consideration of the appellant's role and the low purity of the drug, which were relevant to the objective seriousness of the offence. However, the court did find that the trial judge did not adequately consider the dramatic differences in charges and sentencing outcomes between the co-offenders, which was a significant error. The court also found that while the appellant's lack of evidence might have limited the weight given to his remorse and contrition, it did not constitute an error in the exercise of sentencing discretion. The court allowed the appeal on the basis of the parity issue and ordered a resentencing hearing. The court did not need to determine whether conspiracy offences are subject to a non-parole period, as the appellant conceded that the issue was inapplicable.

Orders