HUTTON, Daniel John v R

LEGISLATION CITED: Crimes (Sentencing Procedure) Act Drug Misuse and Trafficking Act

CASES CITED : R v Shi [2004] NSWCCA 135 R v Yildiz (2006) 160 A Crim R 218

PARTIES: Daniel John Hutton The Crown

COUNSEL: N Mikhaiel (Appellant) D U Arnott SC (Crown)

SOLICITORS: C Hunter (Appellant) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/2872

CAMPBELL JA JAMES J JOHNSON J

THURSDAY 1 MAY 2008 HUTTON, Daniel John v R Judgment 1 CAMPBELL JA: I will ask Justice James to give the first judgment.

2 JAMES J: Daniel John Hutton applied for leave to appeal against a sentence imposed on him in the District Court on 15 February 2007 by his Honour Solomon DCJ for an offence, to which the applicant had pleaded guilty, of supplying a commercial quantity of a prohibited drug, namely, methylenedioxy methylamphetamine (MDMA, commonly known as ecstacy).

3 The applicant was sentenced to a non-parole period of imprisonment for three years commencing 27 May 2006, the date on which he had been arrested and from which he had remained in custody, and a balance of the term of three years.

4 Supplying not less than a commercial quantity of a prohibited drug is an offence under s 25(2) of the Drug Misuse and Trafficking Act, for which the maximum penalty is imprisonment for twenty years or a fine of 3500 penalty units, or both. There is a standard non-parole period for the offence of ten years. Under Sch 1 to the Drug Misuse and Trafficking Act the commercial quantity for MDMA is 125 g and the large commercial quantity is 500 g.

5 In the proceedings for the sentencing of the applicant there was an agreed statement of facts, which the sentencing judge briefly summarised in his remarks on sentence. The following statement of the facts of the offence is derived from the summary in his Honour's remarks, supplemented to some extent by the agreed statement of facts.

6 A police strike force was established to investigate the drug supplying activities of a man named Patterson. Patterson and the applicant were residents of Queensland. In Queensland Patterson approached the applicant, to whom he had been supplying drugs for the applicant's own use.

7 Patterson asked the applicant to take money to Sydney to pay for a quantity of drugs which Patterson had ordered and to bring back to Queensland the drugs which had been ordered. Solomon DCJ found as a fact that the applicant was to receive for his services $500 worth of amphetamine tablets. At the time of committing the offence the applicant was addicted to amphetamine.

8 On 26 May 2006 the applicant flew from Brisbane to Sydney, taking with him nearly $60,000 in cash. He was directed by a person he met in Sydney to a hotel in Randwick, where he booked into a room. The applicant was visited in the hotel room by Patterson's supplier, to whom the applicant handed over the cash. Later that night a total of about 2000 tablets of MDMA, having a total weight of 478 g, were delivered to the applicant's room in the hotel.

9 The applicant strapped packages containing the tablets to his legs, using Glad wrap. While strapping the packages to his legs, the applicant reported by telephone to Patterson, using code words to refer to the drugs. The applicant travelled to the airport in the early morning of 27 May 2006, with the intention of flying back to Queensland. He was arrested at the airport. 10 In his remarks on sentence the sentencing judge found that the applicant's role in the drug transaction had been that of a "bald courier". His Honour found that the applicant's offence was at the lower end of the scale of objective seriousness for offences under s 25(2).

11 His Honour would appear to have made this finding on the basis that at the time of committing the offence the applicant was addicted to drugs and had succumbed to the temptation to obtain drugs by committing the offence. The sentencing judge was clearly aware that the quantity of drugs was only just below the upper limit for the commercial quantity for MDMA of 500 g.

12 His Honour made a finding that the applicant had been part of a planned, well-organised operation to transport a large quantity of drugs from New South Wales into Queensland and that the aggravating factor in s 21A(2)(n) of the Crimes (Sentencing Procedure) Act that "the offence was part of a planned or organised criminal activity" was present.

13 At the time of committing the offence the applicant was a mature man, 44 years old. He had been married twice and had several children, one of whom gave evidence on his behalf in the proceedings on sentence. The sentencing judge accepted evidence by this witness that, until the breakdown of his second marriage, the applicant had lived an exemplary life and had not been involved in drugs.

14 In his remarks on sentence the sentencing judge referred to a number of other subjective features of the applicant. The applicant had a criminal history but the sentencing judge regarded that criminal history as being of "small moment" and noted that the applicant had not previously been in full-time custody. A submission was made to us at the hearing by counsel for the Crown that the finding that the applicant's criminal history was of small moment was unduly generous to the applicant but the finding could not be challenged as being insupportable.

15 While in custody awaiting sentence the applicant had undertaken counselling for his drug addiction. His Honour, having considered a report from a psychologist and having heard the applicant give evidence in the proceedings on sentence, made a finding that the applicant was unlikely to re-offend.

16 His Honour found that the applicant's plea of guilty had been made at the earliest opportunity and that the applicant was genuinely contrite, and his Honour allowed a discount of 25 per cent for the applicant's plea of guilty. His Honour found special circumstances within s 44(2) of the Crimes (Sentencing Procedure) Act in the need of the applicant for ongoing rehabilitation in the community and the fact that the applicant had never previously been in full-time custody.

17 In the proceedings on sentence the sentencing judge had been referred by the applicant's legal representative to the decision of this court in R v Shi [2004] NSWCCA 135. In that case a Crown appeal against a sentence for supplying not less than a commercial quantity of a prohibited drug, being methylamphetamine, was allowed and the respondent was re-sentenced by the Court of Criminal Appeal to a total term of imprisonment of six years, with a non-parole period of three years.

18 In the proceedings on sentence it was submitted by the applicant's legal representative that a sentence similar to, or less than, that imposed by the Court of Criminal Appeal in Shi would be an appropriate sentence to pass on the applicant. In his remarks on sentence the sentencing judge stated that, in his opinion, the sentence imposed by the Court of Criminal Appeal in Shi was the sentence he should impose on the applicant, and his Honour proceeded to impose the same sentence as had been imposed by the Court of Criminal Appeal in Shi.

19 There are two grounds of appeal against sentence:

1. The sentencing judge erred in taking into account as an aggravating factor that the offence was part of a planned or organised criminal activity.
2. The sentencing judge failed to give sufficient weight to factors subjective to the applicant's case, and placed too much weight on the objective seriousness of the offence and considerations of personal and general deterrence. GROUND 1

20 It was submitted by counsel for the applicant that planning is an inherent characteristic of an offence of supplying drugs, and especially a commercial quantity of drugs, and can only be taken into account as an aggravating factor when the amount of the planning exceeds what would normally be expected. Counsel referred to R v Yildiz (2006) 160 A Crim R 218. It was then submitted that in the present case the amount of planning had not exceeded what would normally be expected in an offence of supplying a commercial quantity of a prohibited drug. 21 The general submission made by counsel for the applicant is clearly correct and was not disputed by counsel for the Crown. However, it was submitted by counsel for the Crown that in the present case the amount of planning had exceeded what would normally be expected.

22 In my opinion, in the present case, unlike in Yildiz, there was evidence on which it was at least open to the sentencing judge to make a finding beyond reasonable doubt that the degree of planning exceeded what would normally be expected for an offence of this kind.

23 The evidence of planning would include evidence of the interstate flight by the applicant from Brisbane to Sydney, the meeting with the applicant when he arrived in Sydney, the booking of the applicant into a hotel room in Sydney, the applicant's contacts while in Sydney with Patterson and other co-offenders, and the applicant's coded telephone conversations with Patterson and other persons, in which terms were used which were clearly coded expressions for drugs and drug-related matters. The evidence would also include evidence of the steps taken by the applicant to conceal the drugs by strapping them to his legs.

24 I would reject the first ground of appeal. GROUND 2

25 It was submitted that, if the sentencing judge had allowed a discount of 25 per cent for the applicant's plea of guilty, as the sentencing judge said he had, the sentencing judge must have adopted a starting point, before allowing the discount, of eight years, and such a starting point would have been manifestly excessive.

26 Counsel for the applicant pointed to the sentencing judge's finding that the applicant had been a "bald courier" and the finding that on the scale of objective seriousness the applicant's offence was at the lower end of the scale, even though the quantity of drugs was close to the upper limit of the range for a commercial quantity of MDMA. 27 As I have already indicated, the sentencing judge had been referred by counsel for the applicant in the proceedings on sentence to the decision of this court in Shi. I observe that it is seldom appropriate to sentence an offender by having regard merely to a single other sentence for another offender who was not a co-offender. 28 Shi was similar to the present case in that the offender had been sentenced for one offence of supplying not less than a commercial quantity of a prohibited drug. In that case the drug supplied was methyl amphetamine, for which a higher large commercial quantity is set, and the quantity in question was just below the upper limit of the range for a commercial quantity.

29 However, an important feature of Shi was that it was a Crown appeal against sentence. The Court of Criminal Appeal held that the sentencing judge had made a number of specific errors in applying the standard non-parole period provisions of the Crimes (Sentencing Procedure) Act. In re-sentencing Shi the then Chief Judge at Common Law said that the sentence being imposed by the Court of Criminal Appeal of a head sentence of six years with a non-parole period of three years was the least sentence that could properly have been imposed at first instance.

30 Shi's subjective circumstances were very substantially different from those of the present applicant. Shi was only 18 years old at the time of committing the offence and the Court of Criminal Appeal found he had been vulnerable, because of his age and background (he had migrated to Australia from China at the age of 14 years) and his drug addiction and he had been used, and preyed upon, by older men because of his vulnerability.

31 We were referred by counsel for the applicant to sentencing statistics for sentences imposed for supplying a commercial quantity of the drug ecstasy. However, these statistics are of limited assistance because there are very few cases, and those cases, of course, include offences within the wide range for a commercial quantity of ecstasy, that is from 125 g to 500 g. 32 Although counsel for the applicant disavowed making a submission that the sentence imposed was manifestly excessive, it seems to me that the second ground of appeal is tantamount to a ground of appeal that the sentence imposed was manifestly excessive.

33 I have already summarised the objective facts and the subjective circumstances of the present applicant and I have noted the maximum penalty for the offence and the standard non-parole period for the offence.

34 I am unable to conclude that the sentence imposed by the sentencing judge exceeded the upper limit of a proper exercise of the sentencing judge's sentencing discretion, and I would reject the second ground of appeal.

35 I would grant leave to appeal, but having rejected both grounds of appeal, I would dismiss the appeal.

36 CAMPBELL JA: I agree. I would add only that the second ground of appeal as formulated does not strike me as a valid ground of appeal against the sentence. It does not allege that there was an error of law involved, in the way in which the sentencing judge gave weight to factors subjective to the applicant's case, or to the objective seriousness of the offence and considerations of personal and general deterrence. Neither does it in terms assert that the sentence arrived at was manifestly excessive - ie an exercise of discretion outside the range within which a reasonable judge, applying proper principles, could fix a sentence. I agree with James J having considered it as though it raised a contention that the sentence was manifestly excessive.

38 JOHNSON J: I also agree with the reasons and orders proposed by James J.

39 CAMPBELL JA: The orders of the court will therefore be as proposed by James 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.