R v Hitchen [2020] NSWDC 753

District Court New South Wales

Medium Neutral Citation: R v Hitchen [2020] NSWDC 753 Hearing dates: 9/10/20, 12/10/20 Date of orders: 12/10/20 Decision date: 12 October 2020 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: Convicted and sentenced to an aggregate sentence of 6 years with a NPP of 3 years 10 months (11/10/18-10/8/22). I find special circumstances. Indicative sentences: Proceeding 008 Knowingly take part in supply comm qty – 5 years 10 months with NPP 3 years 9 months (Form 1 taken into account). Proceeding 003 Possess unauthorised firearm – 6 months. Seq 6 Supply large commercial qty – withdrawn and dismissed. Catchwords: Crime – Sentence – Parity – Knowingly take part in supply of commercial quantity methylamphetamine – Supply large commercial quantity - Possess unauthorised firearm Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Firearms Act 1996 Cases Cited: Weininger v The Queen [2003] 212 CLR 629 Category: Sentence Parties: NSW DPP – Crown Geoffrey Hitchen - Offender Representation: Mr G Ellis for Crown Mr M Smith for Offender File Number(s): 2018/311257

sentence 1. Mr Geoffrey Hitchen comes before the Court for sentence on two offences which are as follows. Firstly, knowingly take part in the supply of a prohibited drug, being not less than the commercial quantity of methylamphetamine. The maximum penalty for that offence is 20 years' imprisonment and a standard non parole period of ten years applies. In addition, in sentencing him for that offence he asks that I take into account on a Form 1 an offence of knowingly deal with proceeds of crime, which itself carries a maximum penalty of 15 years' imprisonment. The second offence for which he is to be sentenced is one of possess unauthorised firearm. The maximum penalty for that is five years' imprisonment. The maximum penalty and standard non parole period, where applicable, are of course guideposts in the sentencing exercise to which I have regard. 2. The offender pleaded guilty to the firearms charge at an early stage, and is entitled to a discount of 25%. In relation to the knowingly take part in supply offence, he was initially committed for trial, but after negotiations a plea of guilty was accepted to the offence of knowingly take part in supply of not less than a commercial quantity. It is an agreed matter that he is entitled to a discount of 10% in relation to that offence. 3. The facts of the offences are the subject of agreement and, in essence, are as follows. In 2017 and 2018, the offender was living with his brother, Ross Hitchen, in a house in Lorne Avenue, South Penrith. On 17 August 2017, police installed a surveillance device into a Ford Territory vehicle belonging to the offender's brother, Ross. Thereafter, that device was used for the purposes of a wider investigation into the activities of Ross Hitchen and various associates. On 22 January 2018, police recorded a conversation between the offender and his brother, Ross, in which Ross asked the offender why "the step was left open." When this offender replied, "It was open when I parked the car. I ran the car over it," Ross said, "If the cops come here, we've got real problems. If they come here, we'll be doing 20." The next day, 23 January 2018, police recorded another conversation between the offender and his brother, Ross. In that conversation, Ross Hitchen said to the offender: "I'm gonna tell ya one time, cunt. And you listen to me right now. If you cause a drama at that house and the coppers come around, and lose my mate's money and gear, I will fucking bury you and fucking disown you. You'll have a tribe of cunts wanting to kill you." 1. On 15 February 2018, Ross Hitchen was recorded saying to the offender, "Every time we gotta go, you get smashed for three days." 2. During that month - that is, February 2018 - the offender and his brother drove to Victoria and also to South Australia. On 16 February 2018, the Ford Territory was at Lakes Entrance in Victoria where the offender was recorded saying, "We need to get our stories right in case we get stopped. I've packed heaps of clothes. It's not good if you've only packed two days' clothes." The offender and his brother around this time travelled to a house in Hill Street, Seacliff Park, South Australia, which was the home of a Mr Colin Price. On 4 June 2018, at about 7am, the offender was recorded speaking to his brother, Ross, while in the Ford Territory and saying, "Don't go then," to which Ross Hitchen replied, "We have to. We're fucked. You won't get another dollar 'til we make the money." 3. The car was then driven to Dandenong in Victoria. About a month later, on 5 July 2018, the offender and his brother, Ross Hitchen, drove again to the home of Colin Price in Hill Street, Seacliff Park, South Australia. In a conversation, Price was recorded saying, "How much do these bottles weigh?" to which Ross Hitchen replied, "30. I can't remember if I put 12 or 13 in." 4. On 17 July 2018, the offender communicated with a Levi Millar and arranged to meet him on 24 July 2018 in Dandenong, Victoria. On 27 July 2018, Levi Millar sent a text message to the offender which said, "That was one short." On 8 August 2018, a number of text messages and phone calls were made between Millar and the offender in which they arranged to meet so as to complete a transaction. On 12 August 2018, Ross Hitchen was recorded saying to the offender, "Just ring him. I'm not driving around all day with gear on me. I'm not jumping some fence with gear and fucking running up to the house and putting it in the garbage bin. We don't even know if it's his fucking house." Subsequently, the offender had a further telephone conversation with Mr Millar in which Millar directed the offender to an address and told him to leave something in the garbage bin. At about 7pm on 10 October 2018, the offender and his brother, Ross, met with Levi Millar in an underground carpark in Dandenong. At the time, the offender was seen to be carrying a toiletries bag. At 8.50pm that day, a conversation was recorded between the offender and his brother, Ross, while travelling in the Ford Territory in Victoria which included the following exchange: "Geoffrey: You've been on drugs. Ross: No, I haven't, fuckhead. Haven't been on drugs. Geoffrey: Well, you haven't been sleeping. Ross: I haven't been sleeping because I've been fucking trading. Geoffrey: Well, I don't understand, mate. Ross: I don't really give a fuck either. You can fuckin' do something. Geoffrey: No, you're not doing anything. You're not pulling your weight. Ross: They're all my fuckin' customers. It's all my fuckin' shit. Shut the fuck up. Not pulling my weight. Just make sure your mate pays his fuckin' bills. I'm sick of listening to your fuckin' trash. Geoffrey: Old mate is paying the bill, by the way, except for the fuckin' - the other shit. Ross: What shit? Well, where's that? Geoffrey: The fuckin' - the 30 over - left over. Well, that's it mate. Ross: Well, fuckin' sort that out, mate. Geoffrey: Well, I am gonna. I'm gonna ask him about it. What more you want me to do? Ross: Well, fuckin' get it right. Get it - fuckin' work out where it is. We got fuckin' - I got bills to pay. I can't just keep throwing money at this cunt. Geoffrey: Well, you're not throwing money at him. You'll be paid up square now with the 30 outlaid. Ah. Ah, owing. That's what I'm asking about. That's not why I'm not taking nothing." 1. In a further conversation that night, the following additional exchange occurred between the offender, Geoffrey Hitchen, and his brother, Ross: "Ross: What do you wanna do about this cash? Geoffrey: Nothing. Just take it - just some cunt owed us it, helpin' us out. Ross: Who? Geoffrey: They're not gonna say anything. Ross: They will say something. They'll take it. They just take it off ya. They don't give a fuck what you say. Ross: How big is it? Can you put it down your pants if they fuckin' pull us over? Geoffrey: Where is it? Ross: In there, in the glove box. Just put it down your pants now, mate. Geoffrey: I'm not havin' it the whole way down my fuckin' pants, idiot." 1. On 11 October 2018 - that is, the day after those conversations - police executed a covert search warrant at the Hitchens' home at South Penrith. In the garage, under a staircase, police found the following quantities of methylamphetamine: 83.2 grams in liquid form in a soft drink bottle; 1,078.5 grams in liquid form in another soft drink bottle; 179.8 grams in solid form in a plastic bag; 27.88 grams in solid form in a water bottle; and 17.16 grams in solid form in another water bottle. The total quantity found was 1,386.54 grams. It an agreed fact that the offender was aware: 1. 1. That the methylamphetamine was stored under the staircase of the house; 2. 2. That it was for the purposes of supply; and 3. 3. That it was not less than the commercial quantity. 1. Police also found in the bedroom used by Ross Hitchen a .177 calibre Baikal single shot air rifle. The offender later told police that the air rifle had been purchased both for him and his brother, Ross, by their father when they were children and that they had jointly possessed it since then. Later that same day, police stopped the offender and his brother while they were driving in the Ford Territory in South Penrith. When searched, Ross Hitchen was found to have $15,250 cash in his underwear. It is an agreed fact, however, that this cash was in the joint possession of both the offender and Ross Hitchen, and that it represented the proceeds of past drug sales. Those are the factual matters upon which I proceed to sentence. 2. Objectively, the drug offence is clearly serious, having regard, firstly, to the maximum penalty and the standard non parole period that apply to it. However, in assessing objective seriousness, I must make a determination as to what role the offender played in the offence; in other words, what he did. Of course, that applies also to each of the matters to which I must have regard; namely, the offence of possessing the firearm and also the offence on the Form 1 document. 3. In relation to the knowingly take part in supply offence, the 1.38 kilograms of methylamphetamine found at the offender's house was clearly intended to 4. be used by Ross Hitchen and this offender for the purpose of supply for profit. As noted in the agreed facts, and as further clarified in submissions, the offender was aware that at least a commercial quantity of methylamphetamine was stored under the staircase in the house which he occupied jointly with his brother, and that it was there for the purposes of future supplies. There can be no doubt that this was an ongoing business, although, of course, the offender is only to be sentenced in relation to the drugs in fact found at the house. The profitable nature of the drug supply enterprise is demonstrated by the finding of $15,250 cash in the joint possession of the offender and his brother on arrest; a matter they were recorded discussing the previous day. But, as I have already noted, I am not sentencing this offender for any drug supplies other than the one detected on 11 October 2018 when the methylamphetamine was found at the house. 5. That said, the agreed facts and the offender's admission that the cash found at the time of arrest was the proceeds of drug sales clearly indicate that the drugs found at the house were not the only drugs with which the offender had been involved for the purposes of supply. As I have said, while he is not to be sentenced for any other drug supplies, this evidence demonstrates that the knowingly take part in supply offence committed on 11 October 2018 was not an isolated incident. The offender, therefore, is not entitled to the benefit of the leniency that might otherwise attach if this was a one off incident: see Weininger v The Queen [2003] 212 CLR 629. 6. Conversations referred to in the agreed facts shine further light on the enterprise. On 22 November 2018, the offender was questioned by his brother, Ross, as to why the "step" had been left open, and was reminded that if police came around and found what was hidden inside the step, they would be going to gaol. The offender was also, the very next day, rebuked by his brother, telling him that he would "bury" and "disown" him if he caused any dramas leading to the police coming around. Taken on their own, these conversations might suggest that the offender was subject to the control of his brother and was a mere subordinate. On the other hand, the agreed facts note that on 16 February 2018, this offender suggested to Ross that, "We need to get our stories right in case we get stopped," and, "It's no good if you've only packed two days' clothes." 7. Furthermore, there is the conversation recorded on 4 June, noted at para 9 of the agreed facts, where the two brothers are discussing, apparently, a proposed trip and this offender said to his brother, "Don't go then." There is also a conversation on 10 October 2018 in which this offender suggested to his brother, Ross, that he - that is, Ross - was not "pulling his weight." The additional extracts of the listening device recordings from 22 and 23 January 2018, which became part of Exhibit A in the sentence proceedings, includes conversations of a similar nature which suggest that the two brothers were, in essence, partners. For example, on p 72 of that extract, at 23:30 on 22 January, Ross is heard to say, "Why are you doing this to us? ... Why do you want to destroy everything that we've got?" On p 77 of that document, at 23:37 on 22 January, Ross is heard to say, "You fuck up and they come here, we are fucking gone." On p 81 of that document, at 23:51 on 22 January 2018, Ross is recorded saying, "We've got work to do, right this shit ... We can get that done when we get back to work ... We've got shit coming up, mate. We need your head right." 8. Furthermore, on p 86 of that document, at 02:47 on 23 January, Ross is recorded as saying, "If you're gonna kill someone, go and kill the cunts that owe us all this money." In those various extracts that I have set out, I emphasise the use of the words "we" and "us." In my view, the evidence demonstrates that the offender and his brother were indeed partners, although I accept that this offender had a subordinate role to his brother, Ross, in that partnership. 9. The drugs seized from the offender's home represent many times more than the commercial quantity of 250 grams, and in fact, considerably more than the large commercial quantity of 500 grams. It is accepted by the Crown, however, based on the offence to which the plea of guilty has been entered, that in sentencing for the knowingly take part in supply offence, this offender is to be sentenced on the limited basis that his knowledge extended only to the presence of at least a commercial quantity of 250 grams but not to a quantity of 500 grams or more, which is the large commercial quantity. While the quantity of drugs knowingly supplied is a highly relevant factor, it is not the dominant factor in assessing objective seriousness, as Courts of Appeal have said on numerous occasions in the past. Having regard to the various objective factors, including the quantity of drugs and the offender's role, his offence of knowingly take part in supply lies somewhat below the mid-range but not in the lowest range of objective seriousness. 10. In my view, his moral culpability must be regarded as relatively high. In relation to the proceeds of crime offence which is on the Form 1 document, I accept that this also is a relatively serious offence, which carries a maximum penalty of 15 years' imprisonment. This admitted offence must operate so as to increase the penalty that would otherwise be appropriate for the substantive offence due especially to the importance of personal deterrence and the community entitlement to retribution for serious offences. The firearm offence is of some seriousness, although I note the Crown concession that there is no evidence that it was connected in any way with the drug offending. Given this, and the nature of the weapon, I assess the objective seriousness of that offence as low. 11. Turning to subjective matters, the offender is now 47 years of age, being the older of his parents' two sons. A psychiatric report tendered on sentence refers to a childhood upbringing in an underprivileged area in the Penrith region. Regrettably, both of the offender's parents died from cancer; his mother in 2000 and his father in 2016. He described himself as an average school student, and after leaving school he started his own business and also worked in his brother's café. The past six years or so he has been in a relationship with a lady from Thailand and would spend about six months of each year travelling between Thailand and Australia. 12. The psychiatrist notes that the offender's psychiatric issues are predominantly due to excessive alcohol use, interpersonal family problems and unresolved grief associated largely with his father's death. His alcohol use escalated in the period prior to his father's death from cancer, and he had a number of hospital admissions due to his alcohol use and withdrawal symptoms associated with it. The psychiatrist concludes that the offender has features indicative of alcohol use disorder. While the history given to the psychiatrist was not affirmed by the offender on oath, I believe I can attach significant weight to this aspect of it, given that the listening device material contains multiple references to the offender's alcohol abuse and discussions of whether he required hospital treatment. While I accept that the offender has suffered a major alcohol abuse disorder for some time, and that his offences were committed against that contextual background, this does not of course provide any excuse or mitigation for the seriousness of his offending. 13. I have considered whether there is evidence of remorse. The psychiatrist notes that: "In terms of insight, he stated that he was remorseful for his actions. He said that he is now looking to start a new life after prison. He has completed a few courses in prison and he hopes to get back into the workforce." 1. However, under the heading "Explanation for the offending," the psychiatrist notes that the offender "stated that he was too preoccupied with his addiction and was unaware of his brother's actions." This suggestion does not sit comfortably with the listening device recordings and my findings that the offender was, in effect, a junior partner to his brother. In my view, there is limited evidence of remorse and contrition. 2. The offender's criminal history in New South Wales is limited to some relatively minor drug matters in 1992 and a middle range PCA drink driving offence in 2002. However, it is of some significance that in 2015 he was sentenced in Victoria to a head sentence of 21 months and a non-parole period of 14 months for drug trafficking. 3. Having regard to the limited remorse, the prior drug history, and the offenders largely untreated alcohol disorder, I cannot regard his prospects of rehabilitation as being good. This of course may improve if he follows through on the long term treatment recommended by the psychiatrist, Dr Calvin. At the moment, his prospects, in my view, are uncertain. 4. In sentencing the offender, it is important that the penalty reflect the fundamental need for deterrence, both of this offender and of others. It is well known that drugs, and in particular methylamphetamine, cause great harm in the community and it is the Court's own experience on an almost daily basis that a significant percentage of the offences coming before this Court arise either directly from the abuse of that drug or from the need to fund an addiction to it. 5. I am satisfied that the only appropriate punishment in this case is one of full time imprisonment. In coming to that view, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 6. Another important factor to be weighed in sentencing this offender is the sentence that I imposed on his brother, Ross Hitchen. On 3 August 2020, I sentenced Ross Hitchen to an aggregate term of ten years six months with a non-parole period of six years nine months. The parity principle requires that the sentence imposed on one offender should not be "out of step" with that imposed on a relevant co offender so as to create a justifiable sense of grievance. However, it is important in applying that principle that I have regard not only to any relevant similarities but also to any relevant differences. 7. The aggregate sentence imposed on Ross Hitchen was referrable to three offences: namely (1) conspiracy to manufacture a commercial quantity of methylamphetamine; (2) knowingly take part in the supply of a large commercial quantity of methylamphetamine, along with a Form 1 offence of knowingly deal in proceeds of crime; and (3) the offence under the Firearms Act 1996 relating to the air rifle. The second and third offences to which I have just referred - those being the knowingly take part in supply and the firearms offence - involved the same drugs, the same cash and the same firearm on which this offender is to be sentenced. However, in the case of Ross Hitchen he was being sentenced for an offence of knowingly take part in a supply of a large commercial quantity; whereas, with this offender, his plea of guilty relates to the knowledge of at least a commercial quantity, that is, 250 grams or more, but not an amount equivalent to the large commercial quantity of 500 grams or more. The "knowingly take part" offence for this offender is therefore subject to a lesser maximum penalty and lesser standard non parole period than that which applied to his brother. 8. In addition, Ross Hitchen was of course also being sentenced for an additional offence of conspiracy to manufacture. It was argued that this offender, Geoffrey Hitchen, will have a justifiable sense of grievance if he does not receive a sentence that is significantly less than the indicative sentence of six years six months with a non-parole period of four years three months that I indicated when imposing an aggregate sentence on Ross Hitchen for the offence of knowingly take part in supply of a large commercial quantity. Ross Hitchen received a discount of 25% on all of his sentences, whereas this offender is entitled only to a 10% discount on the drug offence. In addition, this offender had previously been imprisoned for drug trafficking, whereas his brother had no prior drug offences on his record. On the other hand, Ross Hitchen held, as I have found, a more senior role. I have taken into account all of these matters, as well as all of the other matters, both objective and subjective, to which I have referred. Having done so, I am of the view that the indicative sentence for this offender on the supply offence should be slightly less than that applicable to his brother. 9. As there are two offences for which I must sentence, each of which involves separate criminality, I must have regard to principles of totality. Given that the two offences involve separate criminality, it is appropriate for there to be some degree of accumulation in the sentence to be imposed. However, and as I have already indicated, the objective seriousness of the firearms offence is low. 10. I intend to impose an aggregate sentence. Had I not done so, then the penalties that I would have imposed are as follows. 11. Firstly, for the offence of knowingly take part in supply of a commercial quantity of methylamphetamine, and taking into account the matter on the Form 1 document, the indicative sentence is five years ten months' head sentence, with a non-parole period of three years nine months. In relation to the offence of possess unauthorised firearm, the indicative sentence is six months. 12. I impose an aggregate sentence of six years. I find special circumstances for varying the ordinary ratio of non-parole period to head sentence, based on the need for the offender to be monitored on his release due to his alcohol and other problems. I set a non-parole period of three years ten months. Each of those - that is, the aggregate head sentence and the non-parole period - will date from 11 October 2018. The head sentence, therefore, will expire on 10 October 2024, and the non-parole period will expire on 10 August 2022.