Hutton v R - [2008] NSWCCA 99

New South Wales
Court of Criminal Appeal

CITATION: HUTTON, Daniel John v R [2008] NSWCCA 99

HEARING DATE(S): 1 May 2008

JUDGMENT DATE:
1 May 2008

JUDGMENT OF: Campbell JA at [1], [36], [37], [39]; James J at [2]; Johnson J at [38]

EX TEMPORE JUDGMENT DATE: 1 May 2008

DECISION: 1. Grant leave to appeal.
2. Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - Sentencing - drug offence - supplying commercial quantity - s21A(2)(n) - Crimes (Sentencing Procedure) Act

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Drug Misuse and Trafficking Act

CASES CITED: R v Shi [2004] NSWCCA 135
R v Yildiz (2006) 160 A Crim R 218

PARTIES: Daniel John Hutton
The Crown

FILE NUMBER(S): CCA 2007/2872

COUNSEL: N Mikhaiel (Appellant)
D U Arnott SC (Crown)

SOLICITORS: C Hunter (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/1017

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 15 February 2007

2007/2872

CAMPBELL JA
JAMES J
JOHNSON J
THURSDAY 1 MAY 2008

HUTTON, Daniel John v R

Judgment

1 CAMPBELL JA: I will ask Justice James to give the first judgment.

2 JAMES J: Daniel John Hutton applied for leave to appeal against a sentence imposed on him in the District Court on 15 February 2007 by his Honour Solomon DCJ for an offence, to which the applicant had pleaded guilty, of supplying a commercial quantity of a prohibited drug, namely, methylenedioxy methylamphetamine (MDMA, commonly known as ecstacy).

3 The applicant was sentenced to a non-parole period of imprisonment for three years commencing 27 May 2006, the date on which he had been arrested and from which he had remained in custody, and a balance of the term of three years.

4 Supplying not less than a commercial quantity of a prohibited drug is an offence under s 25(2) of the Drug Misuse and Trafficking Act, for which the maximum penalty is imprisonment for twenty years or a fine of 3500 penalty units, or both. There is a standard non-parole period for the offence of ten years. Under Sch 1 to the Drug Misuse and Trafficking Act the commercial quantity for MDMA is 125 g and the large commercial quantity is 500 g.

5 In the proceedings for the sentencing of the applicant there was an agreed statement of facts, which the sentencing judge briefly summarised in his remarks on sentence. The following statement of the facts of the offence is derived from the summary in his Honour's remarks, supplemented to some extent by the agreed statement of facts.

6 A police strike force was established to investigate the drug supplying activities of a man named Patterson. Patterson and the applicant were residents of Queensland. In Queensland Patterson approached the applicant, to whom he had been supplying drugs for the applicant's own use.

7 Patterson asked the applicant to take money to Sydney to pay for a quantity of drugs which Patterson had ordered and to bring back to…

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 Hutton v R

Details

AGLC: Hutton, Daniel John v The Queen [2008] NSWCCA 99
Case: [2008] NSWCCA 99
Decision Date: 1 May 2008

CaseChat Overview and Summary

The case of Hutton v R involved the appellant, Hutton, who was convicted of supplying a commercial quantity of a prohibited drug. The dispute centred on the appropriate sentence to be imposed under section 21A(2)(n) of the Crimes (Sentencing Procedure) Act. The appeal was heard by the New South Wales Court of Criminal Appeal, which was tasked with determining whether the primary judge had erred in sentencing.

The primary legal issue before the court was whether the sentence imposed by the primary judge was manifestly excessive or inadequate. The court had to consider the principles of sentencing articulated in the Crimes (Sentencing Procedure) Act, including the objective of denunciation, the need to protect the community, and the principle that the punishment should be proportionate to the offence. The court also needed to evaluate whether the primary judge had appropriately considered all relevant aggravating and mitigating factors in determining the sentence.

In assessing the appeal, the court found that the primary judge had thoroughly considered the principles of sentencing and had given appropriate weight to the relevant factors. The court held that the sentence imposed was neither manifestly excessive nor inadequate, and thus the appeal was dismissed. The court emphasised that the punishment should reflect the seriousness of the offence and the need to deter others from engaging in similar criminal conduct. The court also noted that the primary judge had taken into account Hutton's background, the nature of the offence, and the impact on the community in reaching the sentencing decision.

The court's decision was final, with no further appeal permitted. The sentence imposed by the primary judge remained in place, reflecting the court's confidence in the sentencing process and the appropriateness of the punishment given the circumstances of the case.

Orders