R v Fitzsimmonds - [2018] NSWDC 470

District Court

New South Wales

Medium Neutral Citation: R v Fitzsimmonds [2018] NSWDC 470
Hearing dates: 4 December 2018
Date of orders: 04 December 2018
Decision date: 04 December 2018
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Head sentence of nine years imprisonment. I discount that by 25% for the utilitarian value of the offender’s plea of guilty. That reduces the head sentence to six years and nine months.

Non-parole period for this offence is four years and six months.
Parole for a period of two years and three months. The sentence must commence at the time the offender was taken into custody on 16 February 2017.
Catchwords: CRIME – SENTENCE – Attempting to possess an unlawfully imported border controlled drug, 39.52 kgs of methylamphetamine – offender involved with a Chinese syndicate which imported 118.24 kgs of methylamphetamine collected nearly 40 kgs of that substance from another (unknown to him) at Auburn and transported to Wiseman’s Ferry where he was arrested - offender had been promised by a person in Hong Kong about one and a half months earlier A$2000 to “pick up some bags in Sydney” – offender trusted with a large quantity of the drug – 42 year old male with 2 dependent teenage children with long history of drug addiction and personal difficulties – sentence of 6 years 9 months, NPP 4 years 6 months
Legislation Cited: Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Cases Cited: Chan, Lo and Nguyen v R [2010] NSWCCA 153
Dao v R [2011] NSWCCA 183
Lau and Lau v R [2014] NSWCCA 179
Luong & Anor v DPP (Commonwealth) [2013] VSCA 296
R v Phelps [2018] NSWCCA 192
Xiao v R [2018] NSWCCA 2
Yu v R [2016] NSWCCA 73
Zhang v R [2010] NSWCCA 105
Category: Sentence
Parties: Regina (Crown)
Bradley Ross Fitzsimmonds (Offender)
Representation:
Counsel:
Ms S Hatch (Crown)
Mr I McLachlan (Offender)
Solicitors:
Solicitors for the DPP (Crown)
Not recorded (Offender)

File Number(s): 2017/00050667
Publication restriction: Nil

Judgment

HIS HONOUR: Bradley Ross Fitzsimmonds stands for sentence as a consequence of having pleaded guilty to a charge of that between 16 February 2017 and 17 February 2017 at Wiseman’s Ferry in this State he did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methylamphetamine and the quantity possessed being a commercial quantity.
The commercial quantity of methylamphetamine is 750 grams. As this is a Commonwealth prosecution the amount in question must be the pure drug. The 750 grams represents pure methylamphetamine. The offender attempted to possess 39.52 kilograms of pure methylamphetamine. As the Crown submissions state that was 52.69 times the commercial quantity threshold. The offence in question is one contrary to s 307.5 of the Criminal Code. The maximum penalty for this offence is imprisonment for life and/or a fine of $1,575,000.
The offender was scheduled to stand for sentence with Ho Pan Chan, but for some reason Chan was unable to be sentenced today.…

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 v Fitzsimmonds

Details

AGLC: R v Fitzsimmonds [2018] NSWDC 470
Case: [2018] NSWDC 470
Decision Date: 04 December 2018

CaseChat Overview and Summary

The court dealt with an appeal against sentence in the case of R v Fitzsimmonds. The appellant had been found guilty of attempting to possess 39.52 kilograms of methylamphetamine, a border controlled drug, which he had unlawfully imported. The drug was part of a larger consignment of 118.24 kilograms imported by a Chinese syndicate. The appellant had collected nearly 40 kilograms of this substance at Auburn and was transporting it to Wiseman’s Ferry when he was arrested. The court heard that the appellant had been promised A$2000 to "pick up some bags in Sydney" by a person in Hong Kong approximately one and a half months prior. Despite his significant involvement with the syndicate and the large quantity of drugs entrusted to him, the appellant had no prior convictions and was a 42-year-old father of two teenage children with a long history of drug addiction and personal difficulties.

The legal issues before the court centred on the appropriate sentence for the appellant's involvement in the importation and possession of the methylamphetamine. The court had to consider the seriousness of the offence, the appellant's culpability, and the principle of proportionality in sentencing. Additionally, the court needed to weigh the appellant's background, including his role within the syndicate, his age, and his responsibilities as a father. The court also had to determine the non-parole period, which is the minimum time the appellant must serve before being eligible for parole.

The court concluded that the head sentence for the offence was nine years imprisonment. It discounted this by 25% to reflect the utilitarian value of the appellant's plea of guilty, reducing the head sentence to six years and nine months. The non-parole period was set at four years and six months, and the appellant was granted parole eligibility after serving two years and three months. The sentence was to commence from the time the appellant was taken into custody on 16 February 2017. The court emphasised the need for deterrence and the protection of the community, while also taking into account the appellant's personal circumstances and the opportunity for rehabilitation.

Orders

Orders of the court

Head sentence of nine years imprisonment. I discount that by 25% for the utilitarian value of the offender’s plea of guilty. That reduces the head sentence to six years and nine months.

Non-parole period for this offence is four years and six months.

Parole for a period of two years and three months. The sentence must commence at the time the offender was taken into custody on 16 February 2017.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Fitzsimmonds [2018] NSWDC 470
Hearing dates:	4 December 2018
Date of orders:	04 December 2018
Decision date:	04 December 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Head sentence of nine years imprisonment. I discount that by 25% for the utilitarian value of the offender’s plea of guilty. That reduces the head sentence to six years and nine months. Non-parole period for this offence is four years and six months. Parole for a period of two years and three months. The sentence must commence at the time the offender was taken into custody on 16 February 2017.
Catchwords:	CRIME – SENTENCE – Attempting to possess an unlawfully imported border controlled drug, 39.52 kgs of methylamphetamine – offender involved with a Chinese syndicate which imported 118.24 kgs of methylamphetamine collected nearly 40 kgs of that substance from another (unknown to him) at Auburn and transported to Wiseman’s Ferry where he was arrested - offender had been promised by a person in Hong Kong about one and a half months earlier A$2000 to “pick up some bags in Sydney” – offender trusted with a large quantity of the drug – 42 year old male with 2 dependent teenage children with long history of drug addiction and personal difficulties – sentence of 6 years 9 months, NPP 4 years 6 months
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Chan, Lo and Nguyen v R [2010] NSWCCA 153 Dao v R [2011] NSWCCA 183 Lau and Lau v R [2014] NSWCCA 179 Luong & Anor v DPP (Commonwealth) [2013] VSCA 296 R v Phelps [2018] NSWCCA 192 Xiao v R [2018] NSWCCA 2 Yu v R [2016] NSWCCA 73 Zhang v R [2010] NSWCCA 105
Category:	Sentence
Parties:	Regina (Crown) Bradley Ross Fitzsimmonds (Offender)
Representation:	Counsel: Ms S Hatch (Crown) Mr I McLachlan (Offender) Solicitors: Solicitors for the DPP (Crown) Not recorded (Offender)
File Number(s):	2017/00050667
Publication restriction:	Nil