R v Hilton - [2021] QCA 286

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hilton [2021] QCA 286

PARTIES:

R
v
HILTON, Matthew Maxamillion
(applicant)

FILE NO/S:

CA No 29 of 2020
SC No 97 of 2019
SC No 121 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Cairns – Date of sentence: 12 February 2020 (Henry J)

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2021

JUDGES:

McMurdo JA and Daubney and Boddice JJ

ORDERS:

1. Leave to appeal be granted.

2. The appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant’s sentence was the subject of a two day hearing – where there was no agreed statement of facts tendered during sentence hearing – where oral submissions were made by the Crown prosecutor and defence counsel regarding the factual basis for sentence – where the applicant submitted the sentencing Judge did not identify the standard applied in determining whether those measures allowed the drawing of a reasonable inference of the level of criminality sufficient to support a sentence of ten years or more imprisonment – whether the sentencing remarks disclose an error warranting a re-exercise of the sentencing discretion

Evidence Act1977 (Qld), s 132C

COUNSEL:

S C Holt QC, with M L Longhurst, for the applicant
E L Kelso for the respondent

SOLICITORS:

Mellick Smith & Associates for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO JA: I agree with Boddice J.
DAUBNEY J: I agree with the reasons of Boddice J and with the orders he proposes.
BODDICE J: The applicant seeks leave to appeal a sentence of 10 years’ imprisonment imposed on 12 February 2020 for an offence of trafficking in dangerous drugs.
The sole ground of appeal, should leave be granted, is that the sentence was infected by error in the application of s 132C of the Evidence Act1977 (Qld) when considering aggravating features of the applicant’s offending.
Background
The applicant was born on 11 November 1987. He was aged 28 to 30 at the time of the commission of the trafficking offence and 32 at sentence. The applicant had no relevant criminal history.
On 7 August 2019, an indictment was presented against the applicant and three co-accused alleging, relevantly, that the applicant and his co-accused had trafficked in dangerous drugs whilst participants in a criminal organisation (Count 1); that the applicant possessed a dangerous drug in excess of 2 grams (Count 2); that the applicant possessed other dangerous drugs (Counts 3 and 4); and that the applicant contravened an order about information necessary to access information stored electronically (Count 9).
Count 1 was alleged to have been committed between 1 March 2016 and 3 January 2018. The dangerous drugs involved in the trafficking business were methylamphetamine, cocaine and 3,4 methylenedioxyamphetamine.
On 9 October 2019, the applicant pleaded guilty to trafficking in dangerous drugs but not guilty…

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 Hilton

Details

AGLC: R v Hilton [2021] QCA 286
Case: [2021] QCA 286
Decision Date: 17 December 2021

CaseChat Overview and Summary

In the matter of R v Hilton, the applicant appealed against the sentence imposed by the Court, specifically challenging the application of section 132C of the Evidence Act 1977 (Qld) during the sentencing process. The applicant argued that the sentencing judge did not correctly identify the standard of proof applied when determining whether the measures allowed for drawing a reasonable inference about the level of criminality that would justify a sentence of ten years or more imprisonment.

The primary legal issue before the Court was whether the sentencing remarks contained an error warranting a re-exercise of the sentencing discretion. The applicant contended that the sentencing judge did not explicitly state the standard of proof applied in determining the nature and extent of the applicant’s involvement in trafficking dangerous drugs, specifically cocaine. The Court had to consider whether the sentencing remarks disclosed an error in the application of section 132C of the Evidence Act.

The Court examined the sentencing remarks and noted that while the judge did undertake a process of considering the nature and extent of the applicant’s trafficking in cocaine, the remarks did not explicitly record the standard of proof applied. Additionally, the findings were presented as inferences without acknowledging any consideration of competing inferences favourable to the applicant. The Court concluded that the absence of a clear statement regarding the standard of proof and the failure to consider competing inferences did not necessarily indicate an error in the application of the Act, particularly given the absence of an agreed statement of facts and the concessions made by the parties. The Court dismissed the appeal against sentence, holding that the sentencing remarks, while not ideal, did not warrant a re-exercise of the sentencing discretion.

Orders

Orders of the court

1. Leave to appeal be granted.

2. The appeal against sentence be dismissed.

Background

Background to the litigation

The sole ground of appeal, should leave be granted, is that the sentence was infected by error in the application of s 132C of the Evidence Act1977 (Qld) when considering aggravating features of the applicant’s offending.Background The applicant was born on 11 November 1987. He was aged 28 to 30 at the time of the commission of the trafficking offence and 32 at sentence. The applicant had no relevant criminal history. On 7 August 2019, an indictment was presented against the applicant and three co-accused alleging, relevantly, that the applicant and his co-accused had trafficked in dangerous drugs whilst participants in a criminal organisation (Count 1); that the applicant possessed a dangerous drug in excess of 2 grams (Count 2); that the applicant possessed other dangerous drugs (Counts 3 and 4); and that the applicant contravened an order about information necessary to access information stored electronically (Count 9). Count 1 was alleged to have been committed between 1 March 2016 and 3 January 2018. The dangerous drugs involved in the trafficking business were methylamphetamine, cocaine and 3,4 methylenedioxyamphetamine. On 9 October 2019, the applicant pleaded guilty to trafficking in dangerous drugs but not guilty to trafficking whilst a participant in a criminal organisation. The applicant also pleaded guilty to Counts 2, 3, 4 and 9. On 10 October 2019, a second indictment was presented against the applicant, alleging a further and separate count of trafficking in a dangerous drug. The trafficking period was between 22 March 2015 and 25 November 2017. The dangerous drug was testosterone. On 6 February 2020, following a ruling that the applicant could not be convicted of trafficking whilst a participant in a criminal organisation, the applicant again pleaded guilty to trafficking in dangerous drugs, which plea was accepted by the Crown in discharge of Count 1. On 12 February 2020, the applicant was convicted and sentenced to ten years’ imprisonment for Count 1. Lesser concurrent terms of imprisonment were imposed in respect of Counts 3 and 4 and the count of trafficking in dangerous drugs on the separate indictment. A sentence of six months’ imprisonment was imposed in respect of Count 9, to be served cumulatively upon the other sentences. A consequence of the imposition of a sentence of ten years’ imprisonment on Count 1 was a declaration that the applicant had been convicted of a serious violent offence. The applicant was required to serve 80 per cent of that sentence prior to being eligible for parole.Sentence hearing The applicant’s sentence was the subject of a two day hearing. There was no agreed statement of facts tendered during sentence hearing. Oral submissions were made by the Crown prosecutor and defence counsel regarding the factual basis for sentence. Exhibits were tendered in the course of those submissions, including transcripts of surveillance intercepts and bank records. The submissions of defence counsel put in issue the circumstances of the applicant’s involvement in the trafficking of cocaine, including the length of his involvement, and quantity of cocaine, having regard to his own personal use of cocaine.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The respondent submits relevant features of the applicant’s trafficking in cocaine included the use of various addresses and encrypted telephones to conduct his trafficking business; steps taken to avoid detection; the regularity with which he was receiving ounce supplies of cocaine monthly; the amount of money received from particular customers over many months; the fact that the applicant doubled the amount of cocaine supplied to him by cutting it down; the fact that, whilst the applicant was a user of the drug himself, a substantial majority of the cocaine supplied to him was on-supplied to his customers; and the fact that the applicant was making a profit, spending it on a flashy lifestyle.Consideration By his plea of guilty to Count 1, the applicant admitted carrying on the business of unlawfully trafficking in three dangerous drugs between 1 March 2016 and 3 January 2018. However, an assessment of the gravamen of his criminality required a determination at sentence of the nature and extent of the applicant’s trafficking. A central issue in dispute in that determination was the nature and extent of the applicant’s trafficking in the dangerous drug, cocaine. The Crown contention was that the trafficking in that drug progressed significantly over the course of the trafficking period, with large quantities of the drug being on-sold by the applicant to his customers, many of whom supplied to their own customers, at wholesale level for much of that period. The defence contention was that that level of trafficking was only undertaken by the applicant in the last six months of the trafficking period and that the quantities of cocaine supplied to the applicant over the entire trafficking period included amounts used by the applicant for his own personal habit. It was contended those amounts “would be at least 25 per cent”.[10][10]AB39/10. As the nature and extent of the applicant’s trafficking in the dangerous drug cocaine was in dispute, it was necessary for the sentencing Judge to make findings of fact as to those issues. The standard of proof appropriate to the determination of those facts was proof on the balance of probabilities.[11][11]Section 132C of the Evidence Act. In determining whether the standard of proof was met, it was relevant for the sentencing Judge to have regard to the seriousness of the making of such findings, where a sentence in excess of 10 years was being contended for by the Crown on a consideration of the circumstances and appropriate yardsticks. The sentencing Judge did undertake a process of considering the nature and extent of the applicant’s trafficking in the dangerous drug, cocaine. However, the sentencing remarks do not record the standard of proof applied to that process. Further, the findings were inferences within the sentencing remarks without recording any consideration of available competing inferences favourable to the applicant. The framing of the sentencing remarks in this way was understandable, having regard to the way in which the sentencing hearing progressed without any agreed statement of facts and the concession by the parties that any findings were to be drawn from available inferences.

CITATION:	R v Hilton [2021] QCA 286
PARTIES:	R v HILTON, Matthew Maxamillion (applicant)
FILE NO/S:	CA No 29 of 2020 SC No 97 of 2019 SC No 121 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	Supreme Court at Cairns – Date of sentence: 12 February 2020 (Henry J)
DELIVERED ON:	17 December 2021
DELIVERED AT:	Brisbane
HEARING DATE:	8 November 2021
JUDGES:	McMurdo JA and Daubney and Boddice JJ
ORDERS:	1. Leave to appeal be granted. 2. The appeal against sentence be dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant’s sentence was the subject of a two day hearing – where there was no agreed statement of facts tendered during sentence hearing – where oral submissions were made by the Crown prosecutor and defence counsel regarding the factual basis for sentence – where the applicant submitted the sentencing Judge did not identify the standard applied in determining whether those measures allowed the drawing of a reasonable inference of the level of criminality sufficient to support a sentence of ten years or more imprisonment – whether the sentencing remarks disclose an error warranting a re-exercise of the sentencing discretion Evidence Act1977 (Qld), s 132C
COUNSEL:	S C Holt QC, with M L Longhurst, for the applicant E L Kelso for the respondent
SOLICITORS:	Mellick Smith & Associates for the applicant Director of Public Prosecutions (Queensland) for the respondent