Hinchcliffe v R

Hinchcliffe v R - [2010] NSWCCA 306 - NSWCCA 2010 case summary — Zoe

[8]

While it was not expressly stated, the written submissions clearly implied that the applicant suffered from a drug addiction, the nature of which was unspecified, and which he plans, on release, to address. 12 Further information was provided, by way of submissions, from the bar table by the applicant's legal representative. 13 The applicant was born in May 1973, and was 35 years of age at the time of the offences, 36 at sentencing. He has a lengthy criminal history, which includes convictions for dishonesty, such as possession of goods reasonably suspected of being stolen, larceny, and receiving, as well as some drug offences. The record is littered with entries concerning the use of motor vehicles, including, extraordinarily, no less than 10 instances of driving whilst disqualified and others of driving whilst unlicensed, or subject to licence cancellation. His Honour was told, in submissions, that the applicant experienced back pain, for which he was prescribed legitimate drugs, but that, in addition to those, he "self medicated" with illegal drugs such as amphetamines, and the other prescription drugs of the kind stolen from the pharmacy and found in his possession. 14 The applicant had earlier been arrested, on or about 31 August 2008, and charged with possession and supply of prohibited drugs. He was, at the time of these offences, on bail in respect of those. In respect of the 2008 offences he was sentenced in the Local Court on 11 February 2009, to a total period of imprisonment for 15 months commencing on 6 January 2009, with a non-parole period of 12 months, expiring on 5 January 2010. 15 The applicant's legal representative went on to tell the sentencing judge that the applicant lives in a de facto relationship, and to refer to the five children; of his 15 year old son his legal representative said that he maintains regular contact with him "as best he can". His Honour was told that the applicant's de facto wife has three daughters of whom the applicant is not the biological father, but for whom he assumes parental responsibility; and, that, with his de facto, he has a seven month old son "who he dotes on". His Honour was told that the applicant was "incredibly ashamed" of his actions, and was conscious that: "… he has let his children down, his defacto wife down and in turn he's let himself down."

[28]

(a) "mid-range" drugs 36 The first complaint was what was said to be an "inappropriate reference" to the drugs as "mid range". 37 That is drawn from that part in the Remarks on Sentence in which his Honour recognised the principle (R v Clark (NSWCCA, 15 March 1990, unreported) that, in offences involving illegal drugs, a custodial sentence must, absent exceptional circumstances, be imposed. In that context, his Honour said: "The courts have recognised that the use of mid range drugs, like amphetamines for other than expressed medical reasons, causes great harm to the community and there is a need for sentences that have an effect as a general deterrence." 38 The submission was made that it is inappropriate to assess the objective seriousness of a drug offence by reference to the nature of the drug. Reference was made to R v Nai Poon [2003] NSWCCA 42; 56 NSWLR 284 and R v Bimahendali [1999] NSWCCA 409; 109 A Crim R 355, and subsequent cases. 39 It is now well established that it is not for the courts to construct a gradation of seriousness of different drugs by reference to perceptions of their harmfulness: Bimahendali at [16]; Adams v The Queen [2008] HCA 15; 234 CLR 143. The seriousness of drug offences is determined by the legislature by the prescription of maximum penalties. One guide to the dangers of a particular drug as perceived by the legislature is the prescription, in Schedule 1 of the DMT Act, of the quantities that constitute traffickable, indictable, commercial and, where applicable, large commercial quantities. In this respect a perusal of Schedule 1 suggests that the traffickable quantity of amphetamines, referred to by the sentencing judge, is 3.0 grams. That is comparable with, for example, heroin and cocaine. When compared with other drugs on the Schedule, it would appear that, to the extent the quantity identified as constituting a traffickable quantity is relevant, the description of "mid range" of amphetamine is, if anything, favourable to the applicant. As a rule of thumb, it might be thought that the smaller the quantity that constitutes a traffickable quantity, the greater the perception of harmfulness of the drug. It may be also be an indicator of the quantities found to be sufficient for the purposes of illegal supply. 40 In any event, in my opinion the categorisation of the drugs here in question, specifically amphetamine, as "mid range" had little impact upon the assessment of objective seriousness; to the extent that it did, it has not been shown to be incorrect.

[36]

The additional ground of appeal: manifest excess 59 The question of concurrency or accumulation (and, if there is to be accumulation, its extent) is one with which this Court (and sentencing courts) regularly have to grapple. Whether or not to accumulate is very much within the discretion of the sentencing judge (R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, although, of course, that discretion is to be exercised in the light of the relevant facts and circumstances (R v Merrin [2007] NSWCCA 255; 174 A Crim R 100). In some instances the facts and circumstances will be such as to point unequivocally either to concurrency or to accumulation. 60 Factors pointing to accumulation include sequential offending (as distinct from a number of offences committed in a single episode of criminality); that the offences involve multiple victims; and that concurrency would, when the principles stated by the High Court in Pearce are correctly applied, result in a total sentence that is inadequate to reflect the total criminality. 61 Factors pointing to concurrency include that the offences were committed as part of a single episode of criminality (R v Lansdell (NSWCCA, 22 May 2005, unreported); R v Weldon; R v Carberry [2002] NSWCCA 475; 136 A Crim R 55 (although this is not "an inflexible rule"): Nguyen v R [2007] NSWCCA 14; Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116); and that the sentence for an offence "can comprehend and reflect the criminality for the other offence[s]": Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41. 62 In dealing with Ground 3(d) above, I have set out the relevant circumstances of the drug offences. Except for the identity and quantity of the drug, they were all identical and cannot be differentiated. 63 In respect of each of those offences, the sentencing judge imposed a sentence of 3 years with a non-parole period of 2 years. Such a sentence is unremarkable, unexceptionable and incontestably appropriate. But the accumulation of each successive sentence upon each earlier sentence by 1 year resulted in an overall sentence (for the drug offences only) of 6 years with a non-parole period of 5 years. That, in my opinion, is manifestly excessive for those offences. When the sentence for the receiving offence is added (also accumulated by another year), it is clear that the sentencing discretion miscarried. 64 In my opinion, in the circumstances of this case, the interests of justice did not call for any accumulation of the drug offences. (It is otherwise in respect of the receiving offence, for which the criminality is different.) All the drug offences ought to have been treated as part of a single enterprise; to adapt the language of Cahyadi, the sentence for each offence could comprehend and reflect the criminality of each other offence. 65 In my opinion, leave to appeal ought to be granted, and the appeal allowed insofar only as the commencement dates of the sentences imposed in respect of counts 4 to 6 are concerned. 66 The orders I propose are:

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