By Paul Gregoire and Ugur Nedim
After receiving information that one Aaron Edward Hutchinson was involved in the supply of prohibited drugs in the Penrith local area command, police began an investigation in early 2010. An undercover operation was arranged and, in April, Mr Hutchinson supplied an undercover officer with cocaine on three separate occasions.
On 7 May, 22-year-old Brent Redfern, an associate of Hutchinson’s, met with two undercover officers at a local shopping centre and sold them 3.5 grams of cocaine for $1,050. The officers had recorded the serial number of the notes prior to using them to buy the drugs.
Redfern and Hutchinson drove again to the shopping centre carpark on 19 May. Hutchinson got into an undercover officer’s car and supplied him with 16.6 grams of cocaine, along with 300 pills that contained methamphetamine.
Following the transaction, Redfern joined them in the vehicle and discussed the quality of the cocaine with the officer, along with details on how to cut it.
On 26 May, both Hutchinson and Redfern got into an undercover officer’s vehicle once again in the shopping centre carpark. This time they supplied 14.6 grams of cocaine and 302 pills. Hutchinson was handed $4,350 and Redfern received $4,000.
The sting
An undercover officer contacted Hutchinson on 10 June. The pair met in the carpark and Hutchinson supplied 300 methamphetamine pills. Shortly after, Redfern arrived with an amount of cocaine that weighed 54.8 grams, which he also supplied to the officer.
Police then arrested Hutchinson. Redfern fled the scene, but was subsequently apprehended a short distance away and taken to Penrith police station to be charged.
Penrith police executed a search warrant at Hutchinson’s premises, where Redfern had recently been staying. Officers found $7,700 inside a safe that belonged to Redfern, who admitted the money was from the sale of cocaine.
Guilty pleas
Mr Redfern entered early guilty pleas to two drug supply charges in the Penrith Local Court.
The first was one count of ongoing supply of prohibited drugs, contrary to section 25A of the Drugs Misuse and Trafficking Act 1985 (the DMT Act). The maximum penalty for this offence is 20 years behind bars and/or a fine of $385,000.
This offence involves an individual on three or more separate occasions over a 30 day period, supplying a prohibited drug, other than cannabis, “for financial or material reward.” This applied to the first three drug transactions Redfern was involved in.
The second count was for supplying an indictable amount of cocaine, under section 25(1) of the DMT Act 1985. This offence carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000. This charge related to the final drug transaction.
The sentencing judge was also asked to take into account a further offence when sentencing for the count of ongoing supply. This was for dealing with the suspected proceeds of crime, under section 193C of the Crimes Act 1900 relating to $7,700 found in Redfern’s safe.
That offence carries a maximum penalty of 12 months imprisonment and/or a fine of $5,500.
The District Court sentencing proceedings
During the sentencing hearings, the court heard that prior to the drug deals in question, Mr Redfern had not been involved in major drug transactions. He did, however, help source and obtain drugs for his friends from suppliers.
Redfern testified that he became involved with Hutchinson when an old school friend asked if he could help him out with sourcing cocaine for a drug deal, which turned out to be with an undercover officer. After the initial transaction, Redfern then saw it as a way to make some quick money.
NSW District Court Judge Jennifer English found that Redfern had shown genuine remorse, had good prospects of rehabilitation and was unlikely to reoffend. But her Honour determined that these circumstances would serve as “little mitigation” due to the nature of the offending.
On sentencing, Judge English outlined that she’d been asked to take into consideration the offence of dealing with the proceeds of crime. This is “a serious matter and I have increased the penalty to be imposed for the sentence of ongoing supply to reflect that matter,” she explained.
The sentences
On 7 December 2010, Mr Redfern was sentenced to 6 years imprisonment, with a non-parole period of 3 years for ongoing supply, and a fixed term of three years for supplying an indictable amount of a prohibited drug.
The sentences were to be served in partial concurrence, so the total sentence came to 6 years and 6 months in prison, with a non-parole period of 3 years and 6 months. This was after a 25 percent discount was applied due to the utilitarian value of Mr Redfern’s early guilty pleas.
The grounds of appeal
Mr Redfern appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA). He did so on three grounds. The first was that the sentencing judge had made an error by increasing the sentence for ongoing supply due to the offence of dealing with the proceeds of crime.
His lawyers also submitted that the judge had erred in finding there was little mitigation in his specific circumstances.
The third ground was that the sentence was manifestly excessive.
Double punishment
NSWCCA Justice Michael Adams found it was clear the sentencing judge had operated under the assumption that the money found in the safe was obtained via other drug transactions, and not those to which the charges referred.
However, the Crown had not disputed Redfern’s claim that the money was from the transactions related to the charges. Indeed, Justice Adams stated that as the notes had been recorded prior to the deals, police must have double checked the source of the money that was found in the safe.
His Honour explained that to punish Redfern further for having the proceeds from the sales, would be like additionally charging him with possession of the drugs as well. “To punish him additionally for either one of those aspects of his conduct is to double count,” he remarked.
“This ground of appeal was made out.”
Subjective Circumstances
Justice Adams pointed out that the offender had “very significant subjective circumstances,” relating to “his lack of prior criminal offences and otherwise good character.” He determined that the sentencing judge had made an error in applying limited mitigation to Redfern’s circumstances.
“There is no special class of offence, including drug dealing, which requires a different rule to be applied to the significance of the particular subjective circumstances in an individual case,” his Honour said. He also found that this ground had been made out.
And since “a latent error in the exercise of the sentencing discretion” had already been revealed, it was necessary for the NSWCCA to resentence Redfern.
The NSWCCA orders
On 23 August 2012, Justice Adams ordered that the “leave to appeal be granted, that the sentences be quashed,” and that Mr Redfern be resentenced.
His Honour remarked that he was initially going to propose shorter sentences, but he refrained from doing so as Justice Peter McClellan and Justice Clifton Hoeben suggested longer sentences, due to the serious nature of the crimes.
Mr Redfern was resentenced to 5 years with a non-parole period of 2 years and six months for ongoing supply and 1 year and 6 months for the cocaine supply offence.
Again, the sentences were to be served with partial concurrence, which brought the total time to be served on the inside to 5 years and 6 months, with a non-parole period of 3 years.
