R (Commonwealth) v Hamilton - [2022] NSWDC 677

District Court

New South Wales

Medium Neutral Citation: R (Commonwealth) v Hamilton [2022] NSWDC 677
Hearing dates: 26 August 2022
Date of orders: 26 August 2022
Decision date: 26 August 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
A sentence of two years to be served subject to an
Intensive Correction Order.

Catchwords:
CRIME – Import commercial quantity of a border controlled drug
SENTENCING - Relevant factors on sentence – early plea – drug imported for non-commercial purpose - naïve importer accused’s version given in evidence- is full time custody required

Legislation Cited:
Criminal Code Act 1995 (Cth)
The Crimes Act 1914 (Cth)

Cases Cited:
Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146
DPP (Cth) v Maxwell [2013] VSCA 50
Markarian v The Queen; 228 CLR 357; [2005] HCA 25
Petkos v R [2020] NSWCCA 55
R v Corbett [2008] NSWCCA 42
R v Davidson [2009] NSWCCA 150
R v Dennison [2011] NSWCCA 114
R v Nguyen; R v Pham [2010] NSWCCA 238

Category: Sentence
Parties: Ben William Hamilton (the offender)
Commonwealth Director of Public Prosecutions
Representation:
Counsel:
Mr A Brown (for Commonwealth Director of Public Prosecutions)
Solicitors:
Mr B Galloway, Galloways Lawyers (for the offender)

File Number(s): 2020/00328675

SENTENCE – EX TEMPORE REVISED

Introduction

On 21 April 2022 Ben Hamilton was indicted before this Court and accepted his guilt in relation to a single charge that he, between 22 October 2020 and 18 November 2020, imported a substance, the border controlled drug Gamma-Butyrolactone (GBL) and that the quantity imported was the commercial quantity. That offence charged pursuant to s 307.1(1) Criminal Code Act 1995 (Cth) carries a maximum penalty of life imprisonment and/or a substantial fine.
Hamilton also asks that when I come to sentence for the principal offence I take into account another matter on a s 16BA, Crimes Act 1914 (Cth) schedule - that he on 8 November 2020 possessed a substance, the substance being reasonably suspected of having been unlawfully important. The was the border controlled drug, GBL, and the quantity possessed was a commercial quantity: 307.8(1) Criminal Code Act. If sentenced separately that offence also carries a maximum penalty of life imprisonment. That offence has been dealt with on a s 16BA Crimes Act 1914 schedule.
In taking it into account I apply the principles set out by McHugh J in Markarian v The Queen; 228 CLR 357: [2005] HCA 25. Although this is a Commonwealth matter the principles expounded by the New South Wales Court of Criminal Appeal in the guideline judgment apply: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146; R v Dennison [2011] NSWCCA 114. It does mean that there must be some increase in the sentence to be imposed for the principal offence for sentence.
The plea was…

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 R (Commonwealth) v Hamilton

Details

AGLC: R (Commonwealth) v Hamilton [2022] NSWDC 677
Case: [2022] NSWDC 677
Decision Date: 26 August 2022

CaseChat Overview and Summary

In the case of R (Commonwealth) v Hamilton, the respondent, Hamilton, was charged with importing a commercial quantity of a border controlled drug. The dispute involved the appropriate sentencing for the offence, with a particular focus on whether full-time custody was necessary given the circumstances. The matter was heard in the Federal Court of Australia.

The central legal issues the court needed to address were the appropriate sentence for the offence of importing a commercial quantity of a border controlled drug and whether the sentence should include full-time custody. The respondent pleaded guilty early, and it was acknowledged that the drugs were imported for a non-commercial purpose. Hamilton's version of events, which suggested he was a naïve importer, was accepted and presented as evidence. The court had to balance these mitigating factors against the seriousness of the offence.

The court considered the respondent's early guilty plea and his status as a naïve importer as significant mitigating factors. Hamilton's acceptance of responsibility and his non-commercial intent were taken into account. The court found that these factors substantially reduced the severity of the offence and the need for a punitive response. Consequently, the court determined that full-time custody was not required. Instead, a sentence of two years was imposed, to be served under an Intensive Correction Order. This decision reflects the court's focus on rehabilitation and the proportionality principle in sentencing.

Orders

Orders of the court

A sentence of two years to be served subject to an

Intensive Correction Order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R (Commonwealth) v Hamilton [2022] NSWDC 677
Hearing dates:	26 August 2022
Date of orders:	26 August 2022
Decision date:	26 August 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	A sentence of two years to be served subject to an Intensive Correction Order.
Catchwords:	CRIME – Import commercial quantity of a border controlled drug SENTENCING - Relevant factors on sentence – early plea – drug imported for non-commercial purpose - naïve importer accused’s version given in evidence- is full time custody required
Legislation Cited:	Criminal Code Act 1995 (Cth) The Crimes Act 1914 (Cth)
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 DPP (Cth) v Maxwell [2013] VSCA 50 Markarian v The Queen; 228 CLR 357; [2005] HCA 25 Petkos v R [2020] NSWCCA 55 R v Corbett [2008] NSWCCA 42 R v Davidson [2009] NSWCCA 150 R v Dennison [2011] NSWCCA 114 R v Nguyen; R v Pham [2010] NSWCCA 238
Category:	Sentence
Parties:	Ben William Hamilton (the offender) Commonwealth Director of Public Prosecutions
Representation:	Counsel: Mr A Brown (for Commonwealth Director of Public Prosecutions) Solicitors: Mr B Galloway, Galloways Lawyers (for the offender)
File Number(s):	2020/00328675