R v Hutchins - [2023] QCA 242

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hutchins [2023] QCA 242

PARTIES:

R
v
HUTCHINS, Craig Robert
(applicant)

FILE NO/S:

CA No 207 of 2023
DC No 206 of 2023
DC No 220 of 2023

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Mackay – Date of Sentence: 27 October 2023 (Allen KC DCJ)

DELIVERED ON:

1 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2023

JUDGES:

Mullins P, Bond JA and Crow J

ORDERS:

1.   The application for leave to appeal against sentence is granted.

2.   The appeal be allowed to the extent of setting aside the sentence on Count 6 and in lieu thereof ordering that the applicant be convicted and not further punished.

3.   Otherwise the appeal be dismissed and the sentences imposed confirmed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to and was sentenced for trafficking in cannabis, supplying cocaine, possessing cannabis in excess of 500 grams and possessing property obtained from trafficking – where the primary judge imposed a head sentence on Count 1 of the trafficking of three and half years imprisonment – where the applicant’s parole eligibility date was fixed after serving 14 months imprisonment, or after having served one third of that sentence – where the applicant argues that the primary judge placed disproportionate weight upon the applicant’s criminal history – where the applicant argues that the primary judge did not place proper weight on the applicant’s early pleas of guilty and strong prospects of rehabilitation – whether the sentence imposed was manifestly excessive

R v Cairns[2011] QCA 145, cited
R v Gair[2019] QCA 172, cited
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
R v Zahran[2023] QCA 169, cited

COUNSEL:

T A Ryan KC for the applicant
S L Dennis for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

MULLINS P: I agree with Crow J.
BOND JA: I agree with Crow J for the reasons his Honour expresses that save in respect of count 6, the applicant has failed to demonstrate that there is any reason to infer that the sentencing discretion miscarried. I agree with Crow J in relation to count 6. I agree with the orders proposed by Crow J.
CROW J: On 27 October 2023, the applicant was sentenced as follows:

Count/
Charge

Sentence Imposed

1

Trafficking in a dangerous drug – between 17/10/2021 and 12/01/2023

Section 5(1) Drugs Misuse Act1986

3 years 6 months imprisonment

2, 3, 4, 5

Supplying a dangerous drug – on 4/11/2021 and 5/11/2021

Section 6(1)(c) Drugs Misuse Act1986

6 months imprisonment

6

Possessing a dangerous drug in excess of 500 grams on 1/07/2022

Section 9(1)(c) Drugs Misuse Act1986

12 months imprisonment

7

Possessing property obtained from trafficking on 11/01/2023

Section 7(1)(a) Drugs Misuse Act 1986

12…

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 Hutchins

Details

AGLC: R v Hutchins [2023] QCA 242
Case: [2023] QCA 242
Decision Date: 1 December 2023

CaseChat Overview and Summary

The case of R v Hutchins involved the applicant appealing against his sentence, arguing it was manifestly excessive or inadequate. The applicant had pleaded guilty to various drug-related offences, including trafficking in cannabis, supplying cocaine, possessing cannabis in excess of 500 grams, and possessing property obtained from trafficking. The primary judge imposed a head sentence of three and a half years imprisonment for the trafficking offence, with parole eligibility set after the applicant served 14 months, or one third of the sentence. The applicant contended that the primary judge had placed disproportionate weight on the applicant’s criminal history and had not adequately considered the early pleas of guilty and prospects of rehabilitation.

The central legal issue before the court was whether the sentence imposed was manifestly excessive. The applicant argued that the primary judge's consideration of the significant commercial possession of cannabis and a large sum of money, alongside the applicant's criminal history, amounted to disproportionate weight. Additionally, the applicant submitted that the primary judge had not sufficiently acknowledged the early pleas of guilty and the strong prospects of rehabilitation. The court needed to determine whether these factors, as well as the comparison with other cases, justified the sentence.

The court examined the primary judge's reasoning and the applicant's arguments. The court found that the primary judge had appropriately considered the commercial aspect of the possession, which was a significant factor in the sentencing. While the primary judge did place weight on the applicant’s criminal history, it was not disproportionate. The court also noted that the primary judge had acknowledged the early pleas of guilty as a mitigating factor. The comparison with other cases did not significantly aid the applicant's argument as each case had unique features. Therefore, the court concluded that the sentence was not manifestly excessive.

ORDERS:
1. The application for leave to appeal against sentence is granted.
2. The appeal be allowed to the extent of setting aside the sentence on Count 6 and in lieu thereof ordering that the applicant be convicted and not further punished.
3. Otherwise the appeal be dismissed and the sentences imposed confirmed.

Orders

Orders of the court

1. The application for leave to appeal against sentence is granted.

2. The appeal be allowed to the extent of setting aside the sentence on Count 6 and in lieu thereof ordering that the applicant be convicted and not further punished.

3. Otherwise the appeal be dismissed and the sentences imposed confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

A significant factual difference is that Zahran desisted in his wholesale cannabis trafficking of his own volition. Zahran’s antecedents were much better than the applicant’s as Zahran had a minor criminal history. Additionally in the period of almost three years between his arrest and sentencing, Zahran had rehabilitated and made considerable effort to turn his life around.Conclusion The three “comparable” cases put before the primary judge and relied upon in this Court were nothing more than very broad yardsticks, as each had different facts and different aggravating and mitigating features such that the comparison between those cases and the applicant’s case does not assist the applicant in showing that the sentence imposed upon him was manifestly excessive. With respect to the 2017 offending, the applicant was sentenced to 18 months’ imprisonment to be released after having served three months. The prior offending was the possessing a Schedule 2 dangerous drug with a quantity of exceeding Schedule 3. The primary judge described the offending conduct as:“The offending conduct is, indeed, serious. You were found to be in possession of 1.6 kilograms of cannabis. It was packaged in a manner that is in and of itself suggestive that it was destined for sale. However, that commerciality was confirmed when police located, hidden below a drawer in the chest of drawers, a sum – a large sum of money – $45,300… the vast majority of it was destined for sale and that is the commercial aspect of the possession that I am dealing with… Your cooperation with the police at the time that the police raid was conducted was – well, you cooperated to some extent, although, as I indicated to counsel it was not in the full extent. As I read the material, you readily admitted the presence of the cannabis, something which would have been well and truly appreciated they would find almost immediately, given its location in the place, but you did not make any reference to the police about there being $45,000 cash hidden under a drawer in the chest of drawers. That only came out when police conducted the full search.” The primary judge was accurate in his analysis of Cairns, Gair and Zahran, in that none of those cases contain the feature of a significant commercial possession of cannabis and a large sum of money within a period of only three years prior to the index offending. Whilst it is accurate to conclude that his Honour did place significant weight upon that issue, the primary judge was right to do so. However, there is nothing in the primary judge’s reasons, nor is there any other reason to conclude that the primary judge placed “disproportionate” weight upon the significant and important feature of the applicant’s immediate past criminal history. As to the applicant’s early pleas of guilty, the primary judge said, “Those are very early pleas of guilty, and that is a mitigating factor I take into account on sentence.”[6][6]ARB 27, line 8.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Hutchins [2023] QCA 242
PARTIES:	R v HUTCHINS, Craig Robert (applicant)
FILE NO/S:	CA No 207 of 2023 DC No 206 of 2023 DC No 220 of 2023
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Mackay – Date of Sentence: 27 October 2023 (Allen KC DCJ)
DELIVERED ON:	1 December 2023
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2023
JUDGES:	Mullins P, Bond JA and Crow J
ORDERS:	1. The application for leave to appeal against sentence is granted. 2. The appeal be allowed to the extent of setting aside the sentence on Count 6 and in lieu thereof ordering that the applicant be convicted and not further punished. 3. Otherwise the appeal be dismissed and the sentences imposed confirmed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to and was sentenced for trafficking in cannabis, supplying cocaine, possessing cannabis in excess of 500 grams and possessing property obtained from trafficking – where the primary judge imposed a head sentence on Count 1 of the trafficking of three and half years imprisonment – where the applicant’s parole eligibility date was fixed after serving 14 months imprisonment, or after having served one third of that sentence – where the applicant argues that the primary judge placed disproportionate weight upon the applicant’s criminal history – where the applicant argues that the primary judge did not place proper weight on the applicant’s early pleas of guilty and strong prospects of rehabilitation – whether the sentence imposed was manifestly excessive R v Cairns[2011] QCA 145, cited R v Gair[2019] QCA 172, cited R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited R v Zahran[2023] QCA 169, cited
COUNSEL:	T A Ryan KC for the applicant S L Dennis for the respondent
SOLICITORS:	Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent

Count/ Charge	Sentence Imposed
1	Trafficking in a dangerous drug – between 17/10/2021 and 12/01/2023 Section 5(1) Drugs Misuse Act1986	3 years 6 months imprisonment
2, 3, 4, 5	Supplying a dangerous drug – on 4/11/2021 and 5/11/2021 Section 6(1)(c) Drugs Misuse Act1986	6 months imprisonment
6	Possessing a dangerous drug in excess of 500 grams on 1/07/2022 Section 9(1)(c) Drugs Misuse Act1986	12 months imprisonment
7	Possessing property obtained from trafficking on 11/01/2023 Section 7(1)(a) Drugs Misuse Act 1986	12…