Hitchen v R

The Remarks on Sentence

1. Having set out the agreed facts of the offences, the sentencing judge observed that, having regard to the maximum penalty and standard NPP specified, the drug offence was clearly a serious one. It related to the applicant's possession of at least a commercial amount of methylamphetamine, that is, an amount between 250 grams and 500 grams, to be used by the brothers for the purposes of supply, for profit, in what his Honour concluded was an ongoing business. The supply offence of 11 October 2018 was not an isolated incident, and the applicant was thus not entitled to the leniency that might have been afforded to him in other circumstances.
2. Referring to the agreed facts and the listening device product summary that the applicant had tendered, the sentencing judge concluded that the brothers were partners in the business of supplying methylamphetamine, albeit a partnership in which the applicant had the subordinate role. He assessed the gravity of the crime as falling "below the mid-range but not in the lowest range of objective seriousness". The applicant's moral culpability was regarded by the sentencing judge as "relatively high".
3. His Honour observed that the penalty imposed for the supply offence must be increased somewhat to comprehend the offence taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and to acknowledge the need for specific deterrence and the community's entitlement to retribution.
4. The firearm offence was considered to be one of low objective gravity, particularly since the Crown has conceded in submissions to the sentencing court that it could not be linked to the supply offence as a tool of the drug trade.
5. His Honour set out in detail the contents of Dr Calvin's report, observing with respect to the applicant's alcohol use that: "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."
6. As to remorse, the sentencing judge was not satisfied that the applicant was remorseful. His Honour noted that the applicant had told Dr Calvin that he was remorseful for his actions, but contrasted that hearsay statement and the applicant's claim to the doctor to have been unaware of his brother's actions, with the evidence of the applicant's active participation in the supply of methylamphetamine. His Honour concluded that there was limited evidence of real contrition.
7. The absence of remorse, coupled with the applicant's history of drug trafficking, caused the sentencing judge to express some uncertainty as to the applicant's prospects for the future, concluding that the applicant's prospects of rehabilitation could not be said to be good.
8. His Honour referred to the need for a sentence that would give effect to principles of specific and general deterrence.
9. Having himself sentenced the applicant's brother and co-offender, the sentencing judge noted: "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."
10. His Honour went on to note the differences in the charges faced by the brothers, and the differing maximum penalty each faced with respect to the supply offences; the more senior role held by Ross Hitchen in the supply offence; the differences in the discounts on sentence awarded to each for the pleas each entered at different stages; and the differing subjective cases, including the applicant's prior history for drug trafficking. He concluded: "[…] 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."
11. Sentence was imposed.

The Application to this Court

1. With respect to ground 1 the applicant argued that he was no more than an assistant to his domineering younger brother, with no independent control over the drugs, and thus it was not open on the evidence before the sentencing court for his Honour to conclude that the applicant was in a partnership with his brother, albeit in a junior position.
2. He contends before this Court that the evidence established that the applicant was subject to the control of his brother with no decision-making power. He points to some of the material in the Agreed facts, and in the Running Sheets tendered to the sentencing court by him to assert that his was clearly the subordinate role. Further, he contends that the subjective evidence, particularly the applicant's statement to Dr Calvin that his brother was a bully, supported that conclusion.
3. With respect to ground 2 the applicant points to the indicative sentence announced for the supply offence as resulting in a sentence which was manifestly excessive when regard is had to the gravity of the offending and the subjective case before the court. Although conceding the limitations on their use, the applicant referred to sentencing statistics as supportive of a claim of manifest excess, in that only 6.5% of the custodial sentences recorded from September 2018 had a starting point greater than 6 years imprisonment.
4. In support of the parity ground, ground 3, the applicant argues that, given that the criminality attaching to Ross Hitchen's conduct was greater than that of the applicant, and their subjective cases were "generally similar", there should have been a greater difference between the penalties imposed upon them than was the case, and he is justifiably aggrieved by the sentence he received in comparison with that imposed upon his brother. It is submitted that the difference in the "starting point" of the sentences for the supply offence indicated for each offender, absent the discount, was "only 2 years and 2 months", this being inadequate to mark the different cases and the greater role of Ross Hitchen. In support of his contention the applicant relies to a considerable extent on the asserted difference in the respective roles of the brothers in the supply offence.
5. The Crown submits that none of the three grounds can be made out, and each should be dismissed.
6. As to ground 1, the Crown argues that his Honour's conclusions as to the partnership between the brothers was supported by both the facts and the listening device product and were open to the court. It was submitted that the evidence established that the applicant was an active participant with his brother in the business of supply rather than an individual who did no more than take directions.
7. The Crown submitted that the statistics relied upon by the applicant in support of ground 2 said little about the appropriate range of sentence against which that imposed upon the applicant might be compared. Of greater relevance were the features of the sentencing cases, including the gravity of the offence, involving as it did at least a commercial quantity of a drug that was very destructive in the community; the applicant's high moral culpability; that the offence was committed in the context of an on-going business of supply and was thus not isolated; that there was another serious offence taken into account against the supply offence; the limited discount on sentence due to the lateness of the plea; and the limited subjective case, where there was no evidence of remorse.
8. With respect to ground 3 the Crown contended that the differences in the cases of the two brothers explained the extent of the difference between the indicative sentences announced with respect to those offences in common to them. Although Ross Hitchen faced a more serious species of the supply charge than did the applicant, and he was held to be in a senior position to the applicant, he received a greater discount on sentence for that offence than did the applicant because of his early plea, and his subjective case was more compelling and deserving of greater mitigation of penalty.

Determination

1. By ground 1 the applicant complains that there was no evidence to support the conclusions drawn by the sentencing judge as to the nature and extent of his role. That is an assertion that overlooks the evidence that was before the sentencing judge, including evidence tendered by the applicant, and fails to acknowledge the conclusions that were available on the whole of the evidence.
2. Counsel for the applicant had argued before the sentencing judge that there was "a paucity of evidence as to what if any role the Offender had in connection with those drugs". It was asserted that the applicant's plea did no more than acknowledge that he had been aware of an amount of methylamphetamine stored under the stairs for the purposes of supply that was above the commercial quantity but below the large commercial quantity, against a background of having assisted his brother in the supply of prohibited drugs over ten months.
3. That an offender acknowledges or asserts a particular level of involvement in a criminal enterprise does not necessarily require a sentencing court to impose sentence on the basis of an acceptance of the offender's assertion. It is a fundamental duty of the judge at sentence to make findings of fact relevant to the exercise of the sentencing discretion: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 at 377 - 378. Plainly the nature of the role played by the applicant was a matter of relevance to the determination of sentence and his Honour was obliged to make factual findings on that issue. He was not obliged to simply adopt the applicant's assertions. Rather a sentencing court must make factual findings on the basis of the whole of the evidence before it.
4. In the applicant's case there was both evidence that pointed to the caution with which his unsworn claims should be approached by the court; and evidence that was capable of establishing a greater role in the supply of drugs than he had been prepared to acknowledge.
5. The statement of facts, agreed by the applicant as an accurate summary of the evidence available to the Crown, contained evidence that supported his Honour's conclusions as to the role of the applicant.
6. The applicant travelled extensively interstate with his brother for the purposes of supplying drugs over a period of months. Some of the intercepted conversations during those journeys clearly point to a joint enterprise between the men, where the applicant undertook duties independent of his brother. On 16 February 2018 when interstate the applicant counselled his brother as to the need to get their "stories straight" against the prospect of the vehicle being stopped by a police patrol. He appeared to offer a mild reprimand to Hitchen, telling him that he (the applicant) had packed "heaps of clothes" but it would be "no good" if Hitchen had with him only "two days clothes". This conversation, referred to by the sentencing judge in his remarks, is inconsistent with Hitchen having an entirely dominant or directorial role, and the applicant doing no more than he was told.
7. On 4 June 2018 the applicant again appeared to counsel Hitchen or suggest the course he should take when he told him not to go on what was, inferentially, a journey connected with the supply of drugs. Hitchen responded in a way suggestive of a jointly conducted business by saying, "we have to" and "we're fucked", and referring to their joint need to make money.
8. In the dealings with Levi Millar described in the agreed facts, it is apparent that the applicant conducted the majority, or all, of the communications with Millar about drug transactions. This conversation, also referred to by the sentencing judge, supports a greater role in the business of supply than that of a mere minion. The same is true of another conversation referred to by the sentencing judge, that of 10 October 2018, when the applicant accused his brother of not pulling his weight. The flavour of that exchange is that of a discussion between two individuals with a mutual interest in their activities. Whilst the co-offender referred in that discussion to "my customers" and "my shit", he also made reference to an individual who, it seems, was a customer of the applicant's, about whom there was some concern as to payment of a drug debt.
9. Later on the same day the co-offender asked the applicant what he wanted to do about the cash and was told by the applicant to "take it". When Hitchen suggested the applicant put the cash "down your pants", the applicant refused, calling his brother an idiot in the process. The details of this exchange support his Honour's conclusions.
10. If the listening device summary is considered, further evidence can be discerned that supports the factual findings made by the sentencing judge. Whilst there are records of robust exchanges between the brothers, including what was plainly understood by the police officer who made the summary to be a physical fight between them, the evidence suggests that the applicant was as capable of aggression as his brother. It was, for example, the applicant who began the fight in the car on 22 January 2018 by threatening to, and then hitting, his brother.
11. As to any purported agreement between the Crown and the applicant concerning the basis upon which the applicant was to be sentenced, it is not for the parties to dictate to a sentencing court the conclusions to be reached by that court. It is for the court to determine the factual basis upon which sentence is to be imposed on the basis of all of the evidence before the court. Here, the facts referred to an agreement between the Crown and the applicant, also mentioned in submissions on sentence, concerning the drugs found at the applicant's house when a search warrant was executed at the premises. It was in these terms: "The offender agrees that he was aware: • that the methylamphetamine was stored under the staircase; • that it was for the purpose of supply; • that it was a quantity which was not less than a commercial quantity of the drug."
12. Since the evidence on sentence did not contradict that aspect of the agreed facts, and the principle in R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 applied in any event, his Honour's conclusions reflect it. However, his Honour was not restricted to that single sentence when determining the facts of the offences. He was both entitled and obliged to consider the whole of the evidence. That evidence comfortably supports to the criminal standard the conclusions of the sentencing judge.
13. The applicant submits that his assertion to Dr Calvin as to his brother having bullied him should have been taken by the sentencing judge as supportive of his much lesser role, but that assumes that his Honour accepted that evidence or should have. There was no obligation on the sentencing judge to uncritically accept the applicant's untested account. The applicant made at least one demonstrably false assertion to Dr Calvin, to the effect that he had been unaware of his brother's activities, highlighting the need for caution in assessing the applicant's claims to the doctor.
14. Sentencing courts are not obliged to accept self-serving claims made by offenders to third parties that are not supported by sworn evidence which the Crown has had an opportunity to test: R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 at [58] - [59]; Imbornone v R [2017] NSWCCA 144 at [3], [9], and [57].
15. Whilst his Honour was prepared to give weight to the applicant's claims to Dr Calvin as to his abuse of alcohol, he did so only after having expressly referred to the fact that there was other evidence supportive of that aspect of the history, being the frequent references recorded in the listening device material to the applicant's alcoholism. There was nothing in the evidence other than the applicant's assertion to Dr Calvin about being bullied that established that the relationship between the brothers was one of dominance by Ross Hitchen. To the contrary, exchanges between the brothers recorded in the evidence before the court went to undermine the applicant's claims in that regard, including those in which Hitchen expressed concern for the applicant's well-being and the effects on his health of his excessive alcohol consumption. Whilst the language used between the men was often rough, that does not detract from what seem to have been genuine concerns for the applicant that his brother held. The relationship established by the evidence could not be characterised as one of dominance and subservience.
16. In short, the conclusion of the sentencing judge that the applicant was a junior member of a partnership with his brother to supply drugs was well open on the uncontested documentary evidence tendered by the parties. If the applicant sought to persuade the sentencing court of a different position on balance, it was open to him to give evidence on the subject, and submit to being cross-examined: Munro v R [2006] NSWCCA 350 at [17] - [19]. He chose not to take that course.
17. Ground 1 cannot be made good.
18. Ground 2 asserts that the aggregate sentence imposed upon the applicant was manifestly excessive, an error with its origins in the excessive sentence indicated for the supply offence. The applicant relies significantly upon statistics held by the Judicial Commission to make good that complaint.
19. This Court was provided by the applicant with statistics relating to sentences imposed in the higher courts of New South Wales between 24 September 2018 and 30 September 2020 for an offence of "s 25(2) supply or knowingly take part in supply, prohibited drug (non-cannabis leaf) commercial qty SNPP post-Muldrock". The statistics for "All Offenders" rely upon 216 cases and demonstrate that 78.2% of offenders received a custodial sentence. Of 169 offenders who received a term of imprisonment, 16.6% were sentenced to a term of 6 years imprisonment or more. Of 158 sentences recorded in statistics relating to the NPP imposed, 17.2% received a NPP greater than 42 months, the applicant having received a NPP of 46 months.
20. In assessing whether the sentence imposed upon the applicant is manifestly excessive, the bare statistical data relied upon by the applicant is almost entirely without meaning. As a starting point, the sentences reflected by the statistics were imposed for an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act, rather than for an offence of that nature taking into account a proceeds of crime offence, and comprehending in the aggregate sentence a firearms offence. That feature alone renders the statistics of little or no utility.
21. There are other limitations however, and nothing can be gleaned from the statistics concerning features of great importance to the exercise of the sentencing discretion. Of those features that are unhelpfully opaque in the statistical data is information as to the nature of the drug, other than that it was not cannabis leaf; the quantity of the drug, other than that it was not less than the commercial quantity for the particular drug; the nature of the supply, a critical feature given that the definition of supply in s 3 of the Act captures a wide range of conduct, of differing levels of gravity and moral blameworthiness; whether a discount on sentence of more or less that the 10% afforded the applicant was involved; or anything at all about the individual subjective cases.
22. A claim of manifest excess cannot be determined by reference to statistical graphs; the sentencing exercise is much more complex and much more individualised than such an approach can comprehend. It is of little or no assistance to this Court to be pointed to such material in the absence of any detail concerning the cases reflected by the data. The limited utility of statistics is or ought to be well understood: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45, at [55]; Owen v R [2017] NSWCCA 54 at [72]; and countless other decisions of this Court that make that point.
23. The applicant was sentenced for a very serious drug crime, with another serious crime taken into account, and a firearms offence. Nothing in the statistics establishes that the sentence imposed upon him was unfair or unjust. Neither does consideration of all of those matters relevant to the determination of the sentence imposed establish that proposition.
24. This ground has not been established.
25. The applicant's final proposed ground complains that, when the sentence indicated for the supply offence for which he was sentenced is compared to that indicated for the supply offence faced by his brother, the applicant is justifiably aggrieved because of an erroneous degree of disparity in the sentences imposed upon each. He contends that his sentence should have been considerably lower than that imposed upon Ross Hitchen.
26. The first difficulty the applicant faces in making that contention good is that both he and Ross Hitchen were sentenced by the same judge, and his Honour was well aware of the requirement for consistency of punishment, referring specifically to the parity principle in his remarks.
27. A similar situation was considered by this Court in Chamon v R [2020] NSWCCA 112, where R A Hulme J (with whom I agreed; Hamill J in dissent, but not as to these principles) said, at [34] - [37]: "The principles that apply are conveniently encapsulated in the following passage in the judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]: "In Lowe v The Queen [(1984) 154 CLR 606] and in Postiglione v The Queen [(1997) 189 CLR 295], this Court was concerned with the application of the parity principle to persons charged with the same offences arising out of the same criminal conduct or enterprise. Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v The Queen [2010) 77 NSWLR 540 at 588-589 [201]-[203]], there can be significant practical difficulties in comparing the sentences of participants in the same criminal enterprise who have been charged with different crimes. The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged." This Court has observed that "considerable obstacles" are placed before an applicant contending error on a parity basis where a sentencing judge is fully aware of the sentences imposed upon co-offenders and the reasons for those sentences, and provides reasons for departing from those sentences: Tatana v R [2006] NSWCCA 398 at [28] (Howie J, Sully and Latham JJ agreeing). In Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173], this Court implicitly endorsed a proposition that it will be cautious and not overly willing to intervene where the same judge sentenced an appellant and the co-offender, recognised the importance of the parity principle and gave effect to it. In Lloyd v R [2017] NSWCCA 303, I observed (at [95]), with the agreement of Payne JA and Garling J, that a differentiation between sentences imposed upon co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. That observation is apposite in the present case. I went on to say (at [96]-[97]: "It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?""
28. Here, his Honour was both conscious of, and applied, the parity principle. He had regard to relevant similarities between the two cases, and also relevant differences, concluding that the difference in sentence with respect to the supply offences faced by the brothers should be modest, with the indicative sentence noted for the offender "slightly less than that applicable to his brother".
29. In reaching that conclusion the sentencing judge considered the differences in the totality and nature of the charges; the differences in the role of each brother; the lesser discount on sentence afforded to the applicant as compared to that afforded his brother; the distinction between the criminal histories of the brothers, with the applicant having been previously imprisoned for drug trafficking where his brother had no criminal record for such offending; and the differing subjective cases.
30. As to the latter, Ross Hitchen presented a stronger subjective case than did the applicant. Where there was no evidence of the applicant being remorseful or contrite for his offending, his brother had some, albeit limited, evidence of remorse; and where the applicant's prospects of rehabilitation were uncertain, his brother was regarded as having reasonable prospects for the future.
31. All of these distinctions were weighed carefully by the sentencing judge, with his Honour determining sentences for each offender in light of that consideration.
32. The degree of differentiation in the sentences imposed upon the brothers was open to the sentencing judge in the exercise of the discretion that reposed in the court. There is nothing in the cases that were before his Honour that supports, on an objective analysis, a justified sense of grievance.
33. This ground has not been made out.

Conclusion

1. Although I would grant leave to the applicant to appeal, the appeal should be dismissed.

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: 10 December 2021