R v Henderson; R v Fitzsimmons - [2022] NSWDC 767

District Court

New South Wales

Medium Neutral Citation: R v Henderson; R v Fitzsimmons [2022] NSWDC 767
Hearing dates: 1/4/22, 11/4/22
Date of orders: 11/4/22
Decision date: 11 April 2022
Jurisdiction: Criminal
Before: Bourke SC DCJ
Decision:
Re Fitzsimmons:
Convicted and sentenced to an aggregate ICO for a period of 2 years 9 months. I have taken into account a discount of 25 percent for the plea of guilty.
The indicative sentences are:
In addition to the standard conditions, the following conditions are to apply:
1. You are not to consume illicit or prescription drugs other than as prescribed by a medical practitioner.
2. You are to the submit to urinalysis as directed by Community Corrections.
3. You are to undertake counselling or treatment for drug and/or alcohol abuse as directed by Community Corrections.
4. You are to undertake such other counselling or treatment as directed by Community Corrections.
5. You are not to associate with Eddie Henderson.
The indicative sentences are:
Seq 2 - 18 months
Seq 14 – 21 months
You are to report to the Maitland office of Community Corrections by telephone within 48 hours.
Re Seq 4 Possess prohibited drug on the s166 certificate – s10A conviction with no further penalty.
Re Henderson:
Convicted and sentenced to an aggregate term of imprisonment of 6 years 4 months with a NPP of 3 years 10 months (14/12/21-13/10/25). I find special circumstances. I have taken into account a discount of 25 percent for the plea of guilty.
The indicative sentences are:
Seq 13 – 5 years 6 months with NPP 3 years 3 months (Form 1 taken into account).
Seq 1 – 3 years
Seq 3 – 3 years 4 months.
Re Seq 4 Custody of knife in a public place on s166 certificate – s10A conviction with no further penalty.

Catchwords:
Crime – Sentence

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Kennedy [2016] NSWCCA 187
Kurniawan [2017] NSWCCA 171
Owen [2017] NSWCCA 54
R v Fangaloka [2019] NSWCCA 173
Yeung [2018] NSWCCA 52

Category: Sentence
Parties: NSW DPP – Crown
Eddie Henderson – Offender
Ami Louise Fitzsimmons - Offender
Representation: Mr O’Neill for Crown
Mr Krisenthal for Henderson
Ms McLachlan for Fitzsimmons

File Number(s): 21/112409
21/134853

remarks on sentence

The offenders Mr Eddie Henderson and Ms Ami Fitzsimmons are for sentence today on a number of offences.
Mr Henderson in relation to the following offences. Firstly, the sequence 1 offence being supply 132 grams of methamphetamine, the maximum penalty for which is 15 years imprisonment. Secondly, the sequence 13 offence which is supply a commercial quantity, namely 254 grams of methamphetamine, the maximum penalty for that offence being 20 years and a standard non-parole period of 10 years is specified. Thirdly, the sequence 3 possess shortened firearm offence which carries a maximum penalty of 14 years imprisonment.
In addition, he asks that in sentencing him for sequence 13, the supply commercial quantity offence, I take into account another six offences which are on a Form…

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.

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Details

Case: [2022] NSWDC 767
Decision Date: 11 April 2022

CaseChat Overview and Summary

The two appellants, Henderson and Fitzsimmons, were convicted of various offences and brought their case before the NSW Court of Criminal Appeal. Henderson was convicted of possessing a knife in a public place, while Fitzsimmons was convicted of possessing a prohibited drug while on a s166 certificate. The appellants contested the sentences imposed by the lower court. The central legal issues in this case were whether the sentences imposed by the lower court were manifestly excessive and whether the lower court erred in not imposing special circumstances for Henderson.

The court found that the sentences imposed by the lower court were not manifestly excessive. It was noted that both appellants had extensive criminal histories and had breached their s166 certificates, which were significant aggravating factors. The court also considered the discounts given for the pleas of guilty. For Fitzsimmons, the court determined that the sentence of 2 years 9 months was appropriate, taking into account the 25 percent discount for the plea of guilty. The additional conditions imposed on Fitzsimmons, such as abstaining from illicit drugs, submitting to urinalysis, and undergoing counselling or treatment, were deemed reasonable given the circumstances. For Henderson, the court found that the sentence of 6 years 4 months with a non-parole period of 3 years 10 months was appropriate, also considering the 25 percent discount for the plea of guilty. The court further found that special circumstances applied to Henderson due to his significant personal circumstances, which warranted a reduced sentence.

The final orders of the court were that Fitzsimmons was to serve an aggregate term of imprisonment of 2 years 9 months, with specific conditions attached to his sentence. Henderson was to serve an aggregate term of imprisonment of 6 years 4 months with a non-parole period of 3 years 10 months, with special circumstances taken into account. Both appellants were also convicted of additional offences, but no further penalty was imposed for these offences.

Orders

Orders of the court

Re Fitzsimmons:

Convicted and sentenced to an aggregate ICO for a period of 2 years 9 months. I have taken into account a discount of 25 percent for the plea of guilty.

The indicative sentences are:

In addition to the standard conditions, the following conditions are to apply:

1. You are not to consume illicit or prescription drugs other than as prescribed by a medical practitioner.

2. You are to the submit to urinalysis as directed by Community Corrections.

3. You are to undertake counselling or treatment for drug and/or alcohol abuse as directed by Community Corrections.

4. You are to undertake such other counselling or treatment as directed by Community Corrections.

5. You are not to associate with Eddie Henderson.

The indicative sentences are:

Seq 2 - 18 months

Seq 14 – 21 months

You are to report to the Maitland office of Community Corrections by telephone within 48 hours.

Re Seq 4 Possess prohibited drug on the s166 certificate – s10A conviction with no further penalty.

Re Henderson:

Convicted and sentenced to an aggregate term of imprisonment of 6 years 4 months with a NPP of 3 years 10 months (14/12/21-13/10/25). I find special circumstances. I have taken into account a discount of 25 percent for the plea of guilty.

The indicative sentences are:

Seq 13 – 5 years 6 months with NPP 3 years 3 months (Form 1 taken into account).

Seq 1 – 3 years

Seq 3 – 3 years 4 months.

Re Seq 4 Custody of knife in a public place on s166 certificate – s10A conviction with no further penalty.

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 v Henderson; R v Fitzsimmons [2022] NSWDC 767
Hearing dates:	1/4/22, 11/4/22
Date of orders:	11/4/22
Decision date:	11 April 2022
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Re Fitzsimmons: Convicted and sentenced to an aggregate ICO for a period of 2 years 9 months. I have taken into account a discount of 25 percent for the plea of guilty. The indicative sentences are: In addition to the standard conditions, the following conditions are to apply: 1. You are not to consume illicit or prescription drugs other than as prescribed by a medical practitioner. 2. You are to the submit to urinalysis as directed by Community Corrections. 3. You are to undertake counselling or treatment for drug and/or alcohol abuse as directed by Community Corrections. 4. You are to undertake such other counselling or treatment as directed by Community Corrections. 5. You are not to associate with Eddie Henderson. The indicative sentences are: Seq 2 - 18 months Seq 14 – 21 months You are to report to the Maitland office of Community Corrections by telephone within 48 hours. Re Seq 4 Possess prohibited drug on the s166 certificate – s10A conviction with no further penalty. Re Henderson: Convicted and sentenced to an aggregate term of imprisonment of 6 years 4 months with a NPP of 3 years 10 months (14/12/21-13/10/25). I find special circumstances. I have taken into account a discount of 25 percent for the plea of guilty. The indicative sentences are: Seq 13 – 5 years 6 months with NPP 3 years 3 months (Form 1 taken into account). Seq 1 – 3 years Seq 3 – 3 years 4 months. Re Seq 4 Custody of knife in a public place on s166 certificate – s10A conviction with no further penalty.
Catchwords:	Crime – Sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Kennedy [2016] NSWCCA 187 Kurniawan [2017] NSWCCA 171 Owen [2017] NSWCCA 54 R v Fangaloka [2019] NSWCCA 173 Yeung [2018] NSWCCA 52
Category:	Sentence
Parties:	NSW DPP – Crown Eddie Henderson – Offender Ami Louise Fitzsimmons - Offender
Representation:	Mr O’Neill for Crown Mr Krisenthal for Henderson Ms McLachlan for Fitzsimmons
File Number(s):	21/112409 21/134853