Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hutchinson v R [2014] NSWCCA 317 Hearing dates: 19/09/2014 Decision date: 19 December 2014 Before: Hoeben CJ at CL at [1]; Fullerton J at [2]; Adamson J at [40] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - supply prohibited drug - deal with proceeds of crime - whether sentence manifestly excessive - whether discount for assistance inadequate Legislation Cited: Crimes Act 1900 (NSW), s 193B(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 23, 44 Criminal Appeal Act 1912 (NSW), s 5DA Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Cases Cited: House v The King [1936] HCA 40; 55 CLR 499 LB v R [2013] NSWCCA 70 Piscitelli v R [2013] NSWCCA 8 R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415 R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248 R v Perez-Vargas (1986) 8 NSWLR 559; 25 A Crim R 194 at 565 SZ v R [2007] NSWCCA 19; 168 A Crim R 249 Category: Principal judgment Parties: Mitchell Joe Hutchinson (Applicant) The Crown (Respondent) Representation: Counsel: GD Wendler (Applicant) NJ Adams (Crown) Solicitors: Weller & Weller Solicitors (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/330553 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-08-07 00:00:00 Before: Wells DCJ File Number(s): 2011/330553 Judgment 1HOEBEN CJ at CL: I agree with Fullerton J. 2FULLERTON J: On 7 August 2013, the applicant was sentenced in the District Court after pleading guilty to one count of supply of 3,4-methylenedioxymethylamphetamine ("MDMA") contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) in an amount not less than the commercial quantity applicable to that drug, and one count of possessing the proceeds of crime, knowing that the money was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW). 3Schedule 1 to the Drug Misuse and Trafficking Act specifies a commercial quantity of MDMA as 0.125 kilograms and a large commercial quantity as 0.5 kilograms. The applicant had in his possession (for supply) 497.4 grams of MDMA, that is, 2.6 grams less than the large commercial quantity. The supply of a commercial quantity of MDMA attracts a maximum penalty of 20 years imprisonment, to which a standard non-parole period of 10 years applies. 4Knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act attracts a maximum penalty of imprisonment for a period of 15 years. 5After allowing for a discount of 25 per cent for the plea of guilty and a discount of 25 per cent for assistance, the applicant was sentenced to imprisonment for 5 years on the supply count with a non-parole period of 2 years and 6 months, and a fixed term of imprisonment for 12 months on the proceeds count to be served concurrently with the sentence on the supply count. 6After a finding of special circumstances, the total effective sentence was imprisonment for a term of 5 years with a non-parole period of 2 years and 6 months. 7The applicant was committed for sentence on 11 April 2012. He pleaded guilty on arraignment in the District Court on 17 June 2013 but was not sentenced at that time. The proceedings were adjourned to allow investigating police to speak to the applicant in the expectation that he could provide assistance. He was sentenced on 7 August 2013. 8The applicant seeks leave to appeal against the sentence imposed against him on three grounds: Ground 1: A starting point sentence of 10 years imprisonment before application of discounts for an early plea and assistance to law enforcement authorities was manifestly excessive. Ground 2: The discount of 25 per cent for assistance to law enforcement authorities was, in the circumstances, inadequate and failed to quantify future assistance to law enforcement authorities. Ground 3: The applicant seeks leave to introduce fresh evidence concerning the significance, nature, usefulness and extent of the applicant's further and ongoing assistance to law enforcement authorities. On the assumption this fresh evidence is admitted on appeal, the applicant's sentence is manifestly excessive and a sentence less severe should be imposed. The facts 9The Crown tendered a set of agreed facts, the applicant's criminal history and a sealed envelope containing an affidavit of a Superintendent of Police in charge of the State Intelligence Group of the Queensland Police Service attesting to the nature and extent of the applicant's assistance to law enforcement authorities into identifiable criminal activity which her Honour found to be ongoing. 10The applicant did not give evidence and called no evidence on his own behalf. 11The following facts are derived from the agreed facts. 12At about 5.10pm on 17 October 2011, a police broadcast alerted police to a black BMW sedan as it travelled towards Dubbo. The occupants of the vehicle were believed to be in possession of prohibited drugs. 13The vehicle was stopped by police. The applicant was in the front passenger seat. On the back seat, police located three boxes containing plastic resealable bags. Two of the boxes appeared unopened and one box opened. 14The police searched the applicant and removed, from the front of his pants, a resealable plastic bag containing a number of blue pills. The applicant also produced a small plastic container which contained white pills and $4200, in cash, in various denominations. 15The applicant was arrested and cautioned. When he was searched police located four mobile phones. 16The applicant and the driver were conveyed to Dubbo Police Station and entered into custody. 17The vehicle was towed to the police holding yard. 18The driver (who was the owner of the vehicle) was interviewed. He denied any knowledge of the drugs or cash in the applicant's possession. He was released from custody without charge. 19The applicant was interviewed. When asked whether there were any other drugs in the vehicle, the applicant told police that there was MDMA secreted in the roof cavity. He told police he brought the drugs with him from Queensland hoping to sell them in Griffith over the forthcoming weekend. Although he admitted to using MDMA, he said his motive as a supplier was the expectation of earning about $5000. The applicant admitted that the $4200 seized by police was from the proceeds of selling other quantities of MDMA. 20The applicant remained in custody until 1 November 2011 when he was granted conditional bail. He remained on bail until he was sentenced on 7 August 2013. The sentencing judge's decision 21In determining the combined discount for the applicant's early plea and assistance to the authorities, the sentencing judge said: "In his favour he has no prior drug offences and he has provided considerable assistance to the authorities in the long period since his arrest. He has entered a plea at the earliest opportunity and was in fact committed for sentence on 11 April 2012 from Dubbo Court. This delay in sentencing him has been brought about by the ongoing assistance he has provided. In terms of his early plea of guilty he will be given a 25 per cent discount from the sentence that might otherwise have been imposed. In addition in regards to the assistance provided which is of quite an extensive and wide ranging and ongoing nature, he will receive a further discount of 25 per cent on the sentence that would otherwise have been imposed. In those circumstances there is a distinct likelihood that whilst in custody there will be considerable hardship on his part and there may be a requirement for protection. I take that matter into account in passing sentence as well." [Emphasis added] 22In assessing the objective seriousness of the supply offence, her Honour held: "For an offence of this kind [the supply count] it is objectively serious. There was a large quantity of drugs involved for an offence of this kind being at the upper end of the range being only 4 grams below the large commercial quantity. He was probably down the chain of supply somewhat because he was actually going to try to sell these drugs himself in Griffith and was probably acting for someone else in having this large quantity in his possession. However there is clearly premeditation on his part which can be readily concluded from the circumstances and the fact that he had four mobile phones in his possession. There is a clear element of sophistication in the offence. Although it is an isolated offence, when considering the total of his subjective circumstances it is clear that he intended to sell this significant quantity and no doubt conduct a number of sales in the process. He was also clearly motivated by profit and, as indicated, expected to receive about $5000 for his role in the offence. Taking into account those matters he has put himself firmly into the mid-range of objective seriousness if not, a little above." 23The sentencing judge took into account that the offences were committed whilst the applicant was the subject of two 2-year good behavior bonds imposed under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 24The sentencing judge found the following subjective factors in the applicant's favour in mitigation of penalty: (1)He was remorseful; (2)He indicated a preparedness and an ability to take significant steps towards rehabilitation; (3)His criminal record consisted primarily of driving offences and he had not previously been in custody other than the short time on remand; (4)He comes from a good family who continue to support him; (5)He had the benefit of a sound upbringing such that there was nothing that would readily explain his involvement in the supply of illegal drugs, save for the fact that he may have "fallen in with a bad crowd" when he was on the Gold Coast and was hoping to recover money owed to him by himself selling drugs; (6)Although he took five MDMA tablets a day prior to the date of arrest, since his arrest he has ceased using illegal drugs; and (7)Special circumstances were found based partly on his youth (being aged 23 at the time of offence) and his excellent prospects of rehabilitation. The appeal The first ground 25On the hearing of the appeal, the applicant's counsel accepted that to submit that "a sentence" is manifestly excessive referable to the undiscounted sentence was contrary to settled principle (see most recently Piscitelli v R [2013] NSWCCA 8 at [91] per Button J). Accordingly, the first ground of appeal was not pressed. No other submission was advanced, either in writing or orally, to support the proposition that her Honour's sentencing discretion miscarried in her assessment of the objective seriousness of the offending in the mid range, "if not a little higher", or that any other error infected the exercise of the sentencing discretion so as to result in a sentence that was unreasonable or plainly unjust. 26I would dismiss the first ground of appeal. The second ground 27The second ground of appeal concerns what was said to be error in her Honour's appointment of a 25 per cent discount for the applicant's assistance to law enforcement authorities, in particular, her failure to give adequate consideration to the fact that at time of sentence his assistance was ongoing. 28The submissions filed in support of this ground of appeal, complain that her Honour omitted to refer to s 23 of the Crimes (Sentencing Procedure) Act and did not quantify the discount for future assistance as required by s 23(4). That submission was not developed orally. No submissions were directed to identifying error in the failure to specify any of the matters the Court is obliged to consider under s 23(3) when deciding whether to impose a lesser penalty on account of assistance to authorities and the nature and extent of the resulting sentence. 29The ultimate position put in submissions on the applicant's behalf was that the discretionary assessment of the value of the applicant's assistance to the authorities has miscarried, not limited to her Honour's failure to assess the value of his ongoing assistance but also including her failure to appreciate that the assistance was, as his counsel described it, "extensive and multifunctional, cogent and efficacious". Counsel submitted that, in addition to the 25 per cent allowed for the early plea, a discrete discount in the order of 35 to 40 per cent should have been allowed for past and future assistance so that a combined discount of between 60 and 65 per cent should have been applied and not the 50 per cent applied by the sentencing judge. 30In the Crown's submission, although it is preferable for a sentencing judge to specify the discount allowed for future assistance, if no other reason than to facilitate the bringing of a Crown appeal under s 5DA of the Criminal Appeal Act 1912 (NSW) where a person has had their sentence reduced on the basis of an undertaking to assist law enforcement authorities and where that person fails wholly or partly to fulfil that undertaking, s 23(6) makes it clear that the failure to do so will not invalidate the sentence. In this case, there was no undertaking of the kind contemplated by s 5DA of the Criminal Appeal Act although it was clear at the time of sentence her Honour appreciated that the applicant was continuing to provide assistance to police. 31In LB v R [2013] NSWCCA 70 at [44], Button J (with whom Bathurst CJ and Hidden J agreed) observed that in cases where a discount is to be given for both a plea of guilty and for both past and future assistance, an apportionment of discount between all three factors should be indicated in a judge's sentencing reasons in order to comply with ss 23(3) and 23(4) of the Crimes (Sentencing Procedure) Act. This approach is consistent with the Court's earlier decision in R v Ehrlich [2012] NSWCCA 38; 219 A Crim R 415. 32In Ehrlich, Basten JA at [6], citing R v Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248, emphasised that the appointment of a discount for assistance involves a broad discretionary exercise. It is neither a rigid or mathematical exercise, nor an exercise where some notional "tariff" might be discernible from other cases. In the judgment of Johnson J in Ehrlich at [63], his Honour also emphasised that the challenge to the discretionary judgment that is engaged when a discount for assistance is under challenge must be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499. 33For my part, I can see no House v The King error in her Honour allowing a 25 per cent discount for the applicant's assistance which, I am satisfied, having reviewed the affidavit evidence, was both significant, useful and timely. Her Honour also made allowance for the likelihood that the applicant would experience hardship in custody with the possibility that he would require protection despite there being no evidence to establish that fact. Although this finding and her Honour's assessment of the utility of the assistance were not expressed to be in compliance with the mandatory considerations under s 23(2), they are in substantial compliance with the intended operation of that section (see ss 23(2)(b), (c) and (e)). 34A final and critical consideration imposed by s 23(3) is that the application of the discount for assistance must not result in a sentence that is unreasonably disproportionate to the nature and circumstances of the offence. 35For my part, a sentence any less than what was imposed in this case would be unreasonably disproportionate to the applicants admitted and serious drug offending. As I noted earlier, in addition to the combined discount of 50 per cent, her Honour extended leniency to the applicant by a finding of special circumstances. The variation to the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act resulted in a non-parole period of 2 years and 6 months and an additional term of 2 years and 6 months. 36I would dismiss the second ground of appeal. 37Having reasoned to that conclusion, I consider it is unnecessary to refer to the question raised but not resolved in Ehrlich, namely whether there is, or ought to be, some restraint where a discount for assistance is under consideration, or whether the approach of in SZ v R [2007] NSWCCA 19; 168 A Crim R 249 (and of cases that have been applied or cited with approval since that time) to the effect that a combined discount the pleas of guilty and assistant should not normally exceed 50 per cent, remains good law. The third ground 38The third ground of appeal was also not ultimately pressed after the Court's attention was drawn to the decision in R v Perez-Vargas (1986) 8 NSWLR 559; 25 A Crim R 194 at 565. That case is clear authority for the proposition that in the absence of error enlivening this Court's jurisdiction on re-sentence, the assistance an offender has provided to the authorities after sentence is a matter for the Executive and not a matter for the invocation of the principles of fresh or new evidence. 39The orders I propose are: (1)Leave to appeal granted. (2)Appeal dismissed. 40ADAMSON J: I agree with Fullerton J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2014