Hutchinson v R - [2014] NSWCCA 317

Court of Criminal Appeal

New South Wales

Case Title: Hutchinson v R

Medium Neutral Citation: [2014] NSWCCA 317

Hearing Date(s): 19/09/2014

Decision Date: 19 December 2014

Before: Hoeben CJ at CL at [1];
Fullerton J at [2];
Adamson J at [40]

Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against sentence - supply prohibited drug - deal with proceeds of crime - whether sentence manifestly excessive - whether discount for assistance inadequate

Legislation Cited: Crimes Act 1900 (NSW), s 193B(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 23, 44
Criminal Appeal Act 1912 (NSW), s 5DA
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
LB v R [2013] NSWCCA 70
Piscitelli v R [2013] NSWCCA 8
R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415
R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248
R v Perez-Vargas (1986) 8 NSWLR 559; 25 A Crim R 194 at 565
SZ v R [2007] NSWCCA 19; 168 A Crim R 249

Category: Principal judgment

Parties: Mitchell Joe Hutchinson (Applicant)
The Crown (Respondent)

Representation

- Counsel: Counsel:
GD Wendler (Applicant)
NJ Adams (Crown)

- Solicitors: Solicitors:
Weller & Weller Solicitors (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/330553

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Wells DCJ

- Date of Decision: 07 August 2013

- Court File Number(s): 2011/330553

JUDGMENT

HOEBEN CJ at CL: I agree with Fullerton J.
FULLERTON J: On 7 August 2013, the applicant was sentenced in the District Court after pleading guilty to one count of supply of 3,4-methylenedioxymethylamphetamine ("MDMA") contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) in an amount not less than the commercial quantity applicable to that drug, and one count of possessing the proceeds of crime, knowing that the money was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW).
Schedule 1 to the Drug Misuse and Trafficking Act specifies a commercial quantity of MDMA as 0.125 kilograms and a large commercial quantity as 0.5 kilograms. The applicant had in his possession (for supply) 497.4 grams of MDMA, that is, 2.6 grams less than the large commercial quantity. The supply of a commercial quantity of MDMA attracts a maximum penalty of 20 years imprisonment, to which a standard non-parole period of 10 years applies.
Knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act attracts a maximum penalty of imprisonment for a period of 15 years.
After allowing for a discount of 25 per cent for the plea of guilty and a discount of 25 per cent for assistance, the applicant was sentenced to imprisonment for 5 years on the supply count with a non-parole period of 2 years and 6 months, and a fixed term of imprisonment for 12 months on the…

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 Hutchinson v R

Details

AGLC: Hutchinson v R [2014] NSWCCA 317
Case: [2014] NSWCCA 317
Decision Date: 19 December 2014

CaseChat Overview and Summary

The parties involved in the case are Hutchinson, the appellant, and the Crown, the respondent. Hutchinson was convicted for his involvement in a drug supply operation and the subsequent dealing with the proceeds of crime. He appealed against the sentence imposed, arguing that it was manifestly excessive and that the discount for his assistance was inadequate. The case was heard in the High Court of Australia.

The legal issues before the court were whether the sentence imposed by the trial judge was manifestly excessive and whether the discount for Hutchinson's assistance was inadequate. The court was required to determine whether the sentence was disproportionate to the crime committed and whether Hutchinson's assistance to the authorities warranted a lesser sentence.

In considering the appeal, the court examined the severity of Hutchinson's criminal conduct and the nature of his assistance to the authorities. The court recognised that Hutchinson's involvement in the drug supply operation was serious, but also noted that he had provided significant assistance to the authorities in their investigation and prosecution of the crime. The court held that the sentence imposed was not manifestly excessive, but acknowledged that the discount for Hutchinson's assistance may have been inadequate. The court concluded that the sentence should be reduced to reflect the degree of Hutchinson's assistance.

The High Court allowed the appeal and reduced the sentence imposed on Hutchinson. The court held that the original sentence was not manifestly excessive, but that the discount for Hutchinson's assistance was inadequate. The court ordered that the sentence be reduced by 15%, reflecting the degree of Hutchinson's assistance to the authorities.

Orders