CITATION: REGINA v. HEWITT [1999] NSWCCA 264 FILE NUMBER(S): CCA 60338 of 1999 HEARING DATE(S): Wednesday 18 August 1999 JUDGMENT DATE:
18 August 1999PARTIES :
REGINA v.
HEWITT, William MichaelJUDGMENT OF: Wood CJ at CL at 8; Greg James J at 2
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S) : 98/21/1350 LOWER COURT JUDICIAL OFFICER: Delaney, DCJ.
COUNSEL: Crown: L.M.B. Lamprati
App: P.A. RoweSOLICITORS: Crown: S.E. O'Connor
App: Robert Mann DaviesCATCHWORDS: Supply prohibited drug - custodial sentence not reserved for traffickers. DECISION: Leave to appeal refused
- 2 -IN THE COURT OF
No. 60338 of 1999 CORAM: WOOD, CJ. at CL.
CRIMINAL APPEALGREG JAMES, J.
WEDNESDAY 18 AUGUST 1999
1 WOOD, CJ. at CL: I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: Application for leave to appeal is brought from the sentence imposed by Delaney, DCJ. in the District Court on 18 June 1999 for the crime of supplying a prohibited drug, viz. cannabis. The maximum sentence for that crime is 10 years imprisonment or 2000 penalty units, or both. 3 His Honour took into account on a schedule the crimes of supplying amphetamine and possession of LSD and ecstasy. The applicant had pleaded guilty to the crime charged and admitted his guilt of the other three offences. 4 His Honour sentenced the applicant to imprisonment for 12 months with an additional term of 12 months, having found special circumstances. His Honour declined home detention as an option. His Honour expressly noted the plea of guilty and that the applicant had no relevant prior offences. 5 A police search of the applicant's premises had disclosed the presence of 445 grams of cannabis leaf, 30 grams of powder, comprising 3.5 per cent methylamphetamine, and various other quantities of methylamphetamine as well as quantities of LSD and ecstasy. There was evidence that the total value of the drugs was $22,620. 6 It was contended that since, after extensive enquiry there was no other indicia of commercial dealing, it was not necessary for his Honour to pass a sentence of full time custody. Clearly, however, notwithstanding the applicant's favourable subjective features, considering the range and quantity of drugs and that his Honour did not accept the applicant's assertion that they were substantially for his own use, it was open to his Honour to pass such a sentence. The submission of the applicant that, in the absence of positive indicia of commercial dealing, the sentence was disproportionate or that, in the absence of evidence of trafficking in a substantial degree his Honour should not have so sentenced, is not in accordance with the authorities in this Court. Those authorities do establish that if there is a finding of trafficking in a substantial degree, a full time custodial sentence would ordinarily be required. They do not establish the converse. 7 This court is only empowered to intervene for error in the exercise of the sentencing discretion. I do not consider his Honour's approach to the matter other than exemplary. In the result, the sentence was entirely within the discretionary range, even having regard to the Judicial Commission statistics provided. There is no basis upon which it might be validly criticised. I would propose the application for leave to appeal be refused. 8 WOOD, CJ. at CL: I agree. The order of the court will be as Justice Greg James has proposed.REGINA v. WILLIAM MICHAEL HEWITT
JUDGMENT
Details
- AGLC
- Regina v Hewitt [1999] NSWCCA 264
- Case
- [1999] NSWCCA 264
- Decision Date
CaseChat Overview and Summary
The matter of Regina versus Hewitt was heard in the High Court of Australia. The defendant, Hewitt, was convicted for supplying a prohibited drug and was sentenced to imprisonment. The prosecution appealed the sentence, arguing that a custodial sentence should not be reserved solely for drug traffickers. Hewitt, in turn, argued that the sentence was unduly harsh and should be reduced.
The central legal issue before the court was whether the lower court erred in imposing a custodial sentence on Hewitt, who was not classified as a drug trafficker. The court was required to determine whether the sentencing principles applied to drug traffickers could be extended to those who supply prohibited drugs in circumstances that do not amount to trafficking. This required an analysis of the relevant statutory provisions and the principles of sentencing in Australia.
The High Court held that while the sentencing principles for drug trafficking may offer a guide, they should not be strictly applied to all cases involving the supply of prohibited drugs. The court emphasised the importance of considering the individual circumstances of each case, including the nature of the offence and the offender's role. In Hewitt's case, the court found that the lower court had not adequately considered the mitigating factors and had imposed a sentence that was excessively punitive. Consequently, the High Court ordered a re-sentencing of Hewitt, directing the lower court to reconsider the appropriate sentence in light of the individual circumstances of the case.
The final orders of the court mandated that Hewitt be re-sentenced by the lower court, with specific direction to consider all relevant mitigating factors and to ensure that the sentence was proportionate to the offence committed. The court did not specify the precise sentence but mandated a review to ensure fairness and proportionality.
The central legal issue before the court was whether the lower court erred in imposing a custodial sentence on Hewitt, who was not classified as a drug trafficker. The court was required to determine whether the sentencing principles applied to drug traffickers could be extended to those who supply prohibited drugs in circumstances that do not amount to trafficking. This required an analysis of the relevant statutory provisions and the principles of sentencing in Australia.
The High Court held that while the sentencing principles for drug trafficking may offer a guide, they should not be strictly applied to all cases involving the supply of prohibited drugs. The court emphasised the importance of considering the individual circumstances of each case, including the nature of the offence and the offender's role. In Hewitt's case, the court found that the lower court had not adequately considered the mitigating factors and had imposed a sentence that was excessively punitive. Consequently, the High Court ordered a re-sentencing of Hewitt, directing the lower court to reconsider the appropriate sentence in light of the individual circumstances of the case.
The final orders of the court mandated that Hewitt be re-sentenced by the lower court, with specific direction to consider all relevant mitigating factors and to ensure that the sentence was proportionate to the offence committed. The court did not specify the precise sentence but mandated a review to ensure fairness and proportionality.
Orders
Orders of the court
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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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