Hutchen v R [2015] NSWCCA 101

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hutchen v R [2015] NSWCCA 101 Hearing dates: 26 March 2015 Decision date: 20 May 2015 Before: Hoeben CJ at CL at [1] Adams J at [46] McCallum J at [47] Decision: Leave to appeal against sentence is granted.

The appeal is allowed.

The sentences imposed by Mahony SC DCJ on 9 May 2014 are confirmed except for the sentence imposed in respect of the offence contrary to s7(1) of the Firearms Act 1996.

The sentence imposed in respect of the possess prohibited firearm offence contrary to s7(1) of the Firearms Act 1996 is quashed and in lieu thereof, the applicant is sentenced to a term of imprisonment with a non-parole period of 2 years commencing 12 December 2014 and expiring 11 December 2016 with a balance of term of 1 year expiring 11 December 2017. Catchwords: CRIMINAL LAW – sentence appeal – offences of supply prohibited drug, deal with the proceeds of crime and possess a prohibited firearm – offences committed while applicant on parole – parole revoked and applicant served balance of term – whether effect given to finding of special circumstances – whether sentencing judge obliged to take into account time spent in custody when offender was serving the balance of parole – error in failing to give effect to finding of special circumstances – need to re-sentence. Legislation Cited: Crimes Act 1900 – s193B(3) Crimes (Sentencing Procedure) Act 1999 – s3A, s10A, s47(3) Criminal Procedure Act 1986 – s166 Drug Misuse and Trafficking Act 1985 - s25(1) Firearms Act 1996 Cases Cited: Barnes v R [2014] NSWCCA 224 CM v R [2013] NSWCCA 341 Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 Caristo v R [2011] NSWCCA 7 Ith v R [2013] NSWCCA 280 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 Maroun Younes v R [2012] NSWCCA 259 R v Kitchener [2003] NSWCCA 134 Sabongi v R [2015] NSWCCA 25 Category: Principal judgment Parties: Christopher Dallas Hutchen – Applicant Regina – Respondent Crown Representation: Counsel: Mr A Evers – Applicant Ms N Williams – Respondent Crown Solicitors: SE O'Connor – Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2012/273470 Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 9 May 2014 Before: Mahony SC DCJ File Number(s): 2012/273470