Supreme Court of South Australia
(Court of Appeal: Criminal)
COCKS v THE QUEEN
[2022] SASCA 21
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Lovell and the Honourable Justice Doyle)
24 March 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING METHYLAMPHETAMINE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING CANNABIS, INDIAN HEMP OR HASHISH
Application for permission to appeal against sentence and appeal against sentence.
The applicant supplied MDMA to Mr Brad Cooper. The following day, Mr Cooper died of a drug overdose. He had ingested both methylamphetamine and MDMA at toxic levels. Police searched the applicant's premises, locating methylamphetamine, cannabis and drug paraphernalia. Text messages retrieved from the applicant's mobile phone indicated her involvement in drug trafficking, and her supply of MDMA to Mr Cooper the night prior to his death.
The applicant pleaded guilty to one count of supplying a controlled drug (MDMA) contrary to s 33I(1) of the Controlled Substances Act 1984 (SA), and two counts of trafficking in a controlled drug (methylamphetamine and cannabis) contrary to s 32(3) of the Controlled Substances Act 1984 (SA).
A single sentence of four years and three months' imprisonment was imposed for the offending, with a non-parole period fixed at two years. In reaching this sentence, the Sentencing Judge indicated a notional starting point of three years for the supply offence and four years and six months for the trafficking offences. The Sentencing Judge declined to suspend the sentence or order that it be served on home detention.
The applicant seeks permission to appeal on the grounds that, inter alia, she was sentenced on an incorrect factual basis, and that the sentence was manifestly excessive.
Held, per the Court, granting permission to appeal on Grounds 1 and 5, allowing the appeal on those grounds and resentencing the applicant:
1. The Sentencing Judge sentenced the applicant on an incorrect factual basis, and, in any event, the sentence imposed was manifestly excessive.
2. The sentence imposed in the District Court is set aside and the applicant resentenced.
3. The sentence is suspended on the condition that the applicant enter into a bond to be of good behaviour with conditions.
Controlled Substances Act 1984 (SA) s 32(3) and s 33I(1); Criminal Procedure Act 1921 (SA) s 158(7); Sentencing Act 2017 (SA) s 26, referred to.
Pateras v The Queen [2021] SASCA 107, applied.
Cuong v The Queen [2021] SASCA 89; Davidson v The Queen [2021] SASCA 130; Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Hackett v The Queen [2021] SASCA 32; House v The…
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- Cocks v The Queen [2022] SASCA 21
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- [2022] SASCA 21
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CaseChat Overview and Summary
The central legal issues before the Full Court of the Supreme Court of South Australia were whether the Sentencing Judge had erred by sentencing the applicant on an incorrect factual basis, and whether the sentence imposed was manifestly excessive. Specifically, the applicant argued that the Sentencing Judge had proceeded on the erroneous assumption that she had supplied both methylamphetamine and MDMA to the deceased, when she had only pleaded guilty to supplying MDMA.
The Court found that the Sentencing Judge had indeed sentenced the applicant on an incorrect factual basis. While the deceased had methylamphetamine and MDMA in his system at the time of death, and the forensic pathologist opined that either drug could have caused death, it was common ground on appeal that the applicant had only supplied MDMA. The Court noted that the Sentencing Judge's remarks, referring to "drugs" in the plural and the transaction whereby the applicant supplied "drugs he took which then killed him," indicated a misapprehension of the facts to which the applicant had pleaded guilty. Consequently, the Court held that the sentence imposed was manifestly excessive.
The Court granted permission to appeal on the relevant grounds, allowed the appeal, set aside the sentence imposed in the District Court, and resentenced the applicant. The new sentence was suspended on the condition that the applicant enter into a bond to be of good behaviour, subject to specified conditions.
Orders
Orders of the court
Held, per the Court, granting permission to appeal on Grounds 1 and 5, allowing the appeal on those grounds and resentencing the applicant:
1. The Sentencing Judge sentenced the applicant on an incorrect factual basis, and, in any event, the sentence imposed was manifestly excessive.
2. The sentence imposed in the District Court is set aside and the applicant resentenced.
3. The sentence is suspended on the condition that the applicant enter into a bond to be of good behaviour with conditions.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
We consider that the Sentencing Judge sentenced the applicant on an incorrect factual basis and further that the notional sentence imposed for Count 1, was, in the circumstances, manifestly excessive. We would grant permission to appeal and would allow the appeal on Ground 1 and Ground 5. Given that conclusion, it is not necessary to deal with the remaining grounds of appeal.ConsiderationGround 1 Mr Armstrong, counsel for the applicant, submits that the Sentencing Judge, when dealing with the supply charge, sentenced on an incorrect factual basis. He contends that the Sentencing Judge sentenced the applicant for supplying both methylamphetamine and MDMA to Mr Cooper when she had in fact pleaded only to supplying MDMA. Mr Armstrong submits that the use of the plural, when referring to drugs, indicates that the Sentencing Judge considered that the applicant supplied both MDMA and methylamphetamine to Mr Cooper. It is necessary to consider the evidence before the Sentencing Judge. The declarations established that Mr Cooper died of a drug overdose. Analysis of the post‑mortem blood sample established that both methylamphetamine and MDMA were present and that each drug was within the range seen in previous fatalities. Having regard to this analysis and his findings at the post‑mortem, the forensic pathologist opined that the deceased had consumed a toxic quantity of both MDMA and methylamphetamine. He stated that the cause of death “may be regarded as methamphetamine and MDMA toxicity”. That is, either drug could have caused death. The report was silent as to what effect the combination of the drugs may have had. It was common ground on appeal that the applicant did not supply methylamphetamine to the deceased; she pleaded guilty to supplying only MDMA to Mr Cooper. To support his submission, Mr Armstrong refers to various remarks of the Sentencing Judge. As previously quoted, the Sentencing Judge stated:Natasha Cocks, you pled guilty to, on 1 November 2019, supplying illicit drugs to a man called Brad Cooper. Text messages establish that you were dealing drugs to him on a regular basis and on that day supplied him with the drugs he took which then killed him.(emphasis added) His Honour further stated:In the totality of the facts of the case, the court cannot accept any submission and mitigation that Mr Cooper was a friend or that there was anything informal or isolated about the transaction whereby you supplied him with drugs.(emphasis added) Later in his reasons, the Sentencing Judge remarked:Whilst you would not have intended Mr Cooper’s death, you were knowingly supplying drugs which are recognised by the legislation and in the community as very harmful with the risk that exactly this would have occurred.(emphasis added) While it is clear that the applicant supplied more than one tablet of MDMA, Mr Armstrong submits that, in context, the reference to drugs, rather than simply MDMA or drug, singular, establishes the error. That is, the reference to drugs is a reference to both MDMA and methylamphetamine.