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Hutchen v R

Hutchen v R

Case [2015] NSWCCA 101 20 May 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hutchen v R [2015] NSWCCA 101
Hearing dates: 26 March 2015
Decision date: 20 May 2015
Before: Hoeben CJ at CL at [1]
Adams J at [46]
McCallum J at [47]
Decision:
Leave to appeal against sentence is granted.
The appeal is allowed.
The sentences imposed by Mahony SC DCJ on 9 May 2014 are confirmed except for the sentence imposed in respect of the offence contrary to s7(1) of the Firearms Act 1996.
The sentence imposed in respect of the possess prohibited firearm offence contrary to s7(1) of the Firearms Act 1996 is quashed and in lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 2 years commencing 12 December 2014 and expiring 11 December 2016 with a balance of term of 1 year expiring 11 December 2017.
Catchwords: CRIMINAL LAW – sentence appeal – offences of supply prohibited drug, deal with the proceeds of crime and possess a prohibited firearm – offences committed while applicant on parole – parole revoked and applicant served balance of term – whether effect given to finding of special circumstances – whether sentencing judge obliged to take into account time spent in custody when offender was serving the balance of parole – error in failing to give effect to finding of special circumstances – need to re-sentence.
Legislation Cited: Crimes Act 1900 – s193B(3)
Crimes (Sentencing Procedure) Act 1999 – s3A, s10A, s47(3)
Criminal Procedure Act 1986 – s166
Drug Misuse and Trafficking Act 1985 - s25(1)
Firearms Act 1996
Cases Cited: Barnes v R [2014] NSWCCA 224
CM v R [2013] NSWCCA 341
Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
Caristo v R [2011] NSWCCA 7
Ith v R [2013] NSWCCA 280
Kentwell v The Queen [2014] HCA 37; 313 ALR 451
Maroun Younes v R [2012] NSWCCA 259
R v Kitchener [2003] NSWCCA 134
Sabongi v R [2015] NSWCCA 25
Category: Principal judgment
Parties: Christopher Dallas Hutchen – Applicant
Regina – Respondent Crown
Representation: Counsel:
Mr A Evers – Applicant
Ms N Williams – Respondent Crown
Solicitors:
SE O’Connor – Legal Aid NSW – Applicant
Solicitor for Public Prosecutions – Respondent Crown

File Number(s): 2012/273470
Decision under appeal

Court or tribunal:

District Court of NSW

Date of Decision:

9 May 2014

Before:

Mahony SC DCJ

File Number(s):

2012/273470

Judgment

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal from the sentence imposed upon him by Mahony SC DCJ in the Newcastle District Court on 9 May 2014.

The applicant pleaded guilty to the following offences:

Supply a prohibited drug contrary to s25(1) of the Drug Misuse and Trafficking Act 1985 for which the maximum penalty is imprisonment for 15 years.

Deal with the proceeds of crime contrary to s193B(3) of the Crimes Act 1900 for which the maximum penalty is imprisonment for 15 years.

Possess a prohibited firearm contrary to s7(1) of…

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 Hutchen v R

Details

AGLC: Hutchen v R [2015] NSWCCA 101
Case: [2015] NSWCCA 101
Decision Date: 20 May 2015

CaseChat Overview and Summary

Hutchen was sentenced to a custodial term for supplying a prohibited drug, dealing with the proceeds of crime, and possessing a prohibited firearm. The applicant appealed against the sentence, arguing that the primary judge had erred in failing to give effect to the finding of special circumstances and in not taking into account the time spent in custody while the applicant was serving the balance of parole. The appeal raised issues concerning the effect of special circumstances and the consideration of time spent in custody during parole when calculating the sentence.

The court examined whether the sentencing judge had properly considered the special circumstances found to exist and whether the sentence took into account the time the applicant spent in custody while serving the balance of parole. The court noted that the primary judge did not adequately address the special circumstances or the time spent in custody while serving the balance of parole. The court held that these factors required consideration, and the failure to do so constituted a material error in the sentencing process. Consequently, the court determined that a re-sentencing was necessary to rectify these errors.

The court quashed the sentence and ordered a re-sentencing hearing. The court instructed that the re-sentencing judge should consider the special circumstances and the time spent in custody while serving the balance of parole. The court emphasised that these factors were critical to a just and appropriate sentence, and their omission from the original sentencing process necessitated a re-evaluation. The applicant was to be re-sentenced by a different judge, ensuring that all relevant factors were appropriately considered.

Orders