Cocks v The Queen
[2022] SASCA 21
•24 March 2022
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 King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; R v Copeland (No 2) (2010) 108 SASR 398; R v De Simoni (1981) 147 CLR 383; R v Hoffman [2017] SASCFC 15; R v Keut [2021] SASCA 39; R v Young (2016) 126 SASR 41; Rendic v The Queen [2021] SASCA 23, considered.
COCKS v THE QUEEN
[2022] SASCA 21Court of Appeal – Criminal: Kourakis CJ, Lovell and Doyle JJA
THE COURT: On 2 November 2019, Mr Brad Cooper died from a drug overdose. Post‑mortem examination detected toxic levels of both methylenedioxymethamphetamine (“MDMA”) and methylamphetamine in Mr Cooper’s blood. Cause of death was attributed to MDMA and methylamphetamine toxicity.
Police investigations into Mr Cooper’s death led to a search of the applicant’s premises on 14 April 2020. Her mobile telephone was seized. Analysis of the mobile telephone provided evidence that the applicant had supplied MDMA to Mr Cooper on 1 November 2019. The search also revealed that the applicant was trafficking in both cannabis and methylamphetamine. There was no evidence that the applicant had supplied or sold methylamphetamine to Mr Cooper.
On 14 April 2020, the applicant was charged with two counts of trafficking in a controlled drug (methylamphetamine and cannabis). On 18 April 2020, the applicant was charged with one count of supplying MDMA to Mr Cooper. Pursuant to s 26 of the Sentencing Act 2017 (SA), the Sentencing Judge imposed one sentence of four years and three months and fixed a non-parole period of two years. In reaching this sentence, his Honour commenced with notional starting points of three years for the charge of supply, and four years and six months for the combined trafficking charges. The Sentencing Judge declined to suspend the sentence or order that it be served on home detention.
On appeal, the applicant submits that the notional starting point for the supply offence was manifestly excessive. The applicant also complains that the Sentencing Judge sentenced the applicant on an incorrect factual basis.
For the reasons that follow, we would grant permission to appeal and allow the appeal.
Circumstances of the offending
On 2 November 2019, Mr Cooper was discovered deceased in his bedroom following a drug overdose. Upon post‑mortem examination, Mr Cooper’s blood was found to contain toxic levels of MDMA and methylamphetamine, as well as Diazepam. The cause of death was suggested to be from the toxic levels of methylamphetamine, or MDMA, or a mixture of both.
Police investigating Mr Cooper’s death located at his residence drug paraphernalia, a sealed box of 50 Valpram 2 milligrams tablets and an opened box of 50 Diazepam tablets, from which 18 tablets were missing. Analysis of Mr Cooper’s mobile phone indicated the applicant’s involvement in the supply of illicit drugs to Mr Cooper on 1 November 2019. The text messages read as follows:
SMS message sender and time sent on 1 November 2019
Content of message
SMS sent by Mr Cooper at 7.16 pm Hey girl, question…do you have any of that mdma left you are prepared to part with? I would really love to go a half and half again…xoxo let me know x o. SMS sent by applicant at 9.01 pm Hello, I have some coming in about half hour-45. So certainly will once that gets here :) Were you thinking of grabbing it tonight or? SMS sent by Mr Cooper at 9.02 pm Yep time frame peefect [sic] SMS sent by Mr Cooper at 9.48 pm We good? Take about 20 for me to get there, don’t have much time to stay and chat if that’s ok xoxo SMS sent by applicant at 10.00 pm Yep it’s just got here. I’ll get it ready for you now, [h]ow much you after? SMS sent by Mr Cooper at 10.05 pm 50 of my usual and if you have any of that md left, whatever you have [sic] me the other day really rocked my world
Following the retrieval of the text messages, on 14 April 2020, the police searched the applicant’s premises and seized four press-seal bags of cannabis and 22 press‑seal bags of methylamphetamine; the methylamphetamine totalling 4.98 grams. Police further seized cash in the amount of $3,205, drug paraphernalia including ice pipes and digital scales, various other controlled and prescription drugs packaged in press‑seal bags including MDMA, and the applicant’s mobile phone. The applicant was charged with two counts of trafficking in a controlled drug (methylamphetamine and cannabis) contrary to s 32(3) of the Controlled Substances Act 1984 (SA) (“trafficking offences”).
Police subsequently analysed the applicant’s mobile phone. The SMS messages located confirmed that the applicant supplied MDMA to Mr Cooper on 1 November 2019, and that she had supplied drugs to him previously. Further SMS messages retrieved established that the applicant trafficked drugs to a number of people between 6 September 2019 and 14 April 2020.
On 18 April 2020, the applicant was arrested and charged with supplying a controlled drug to Mr Cooper contrary to s 33I(1) of the Controlled Substances Act 1984 (SA) (“supply offence”).
The sentence imposed
When considering the circumstances of the applicant’s trafficking offences, the Sentencing Judge found that the applicant was “appropriately characterised as a busy street-level dealer of both methamphetamine and cannabis” and that the offences formed part of her “busy, ongoing business”. While his Honour accepted that the applicant was dealing to fund her own use of illicit drugs, he also found that, beyond reasonable doubt, there existed “an element of commerciality in [the applicant’s] trafficking, in other words, profit”. His Honour described this element of commerciality as “plain both from the scale of your trafficking and the cash seized”. The applicant challenges that finding.
The Sentencing Judge took into account the letters of support and psychological report tendered by counsel for the applicant, as well as the apology read by the applicant to the Court.
A notional starting point of four years and six months’ imprisonment was imposed for the trafficking offences, and a starting point of three years’ imprisonment for the supply offence. His Honour made two years and six months of the supply offence concurrent with the sentence imposed for the trafficking offences, finding that such application of partial concurrency was warranted as the charges represented an ongoing course of conduct and displayed a degree of overlap. The sentence of five years’ imprisonment was reduced by 15 per cent to reflect the applicant’s plea of guilty. The final term of imprisonment was a single sentence of four years and three months. In fixing the non-parole period, the Sentencing Judge had regard to the applicant’s positive steps towards rehabilitation and the impact her incarceration would have on her young family. His Honour consequently imposed a “shorter non-parole period than there might otherwise be” of two years.
The Sentencing Judge declined to suspend the applicant’s sentence on account of the seriousness of her offending, the need for adequate punishment and general deterrence. While the applicant and the applicant’s premises were found to be suitable for home detention, in light of the ongoing nature of the applicant’s offending, the need for adequate punishment, general deterrence and the “harm caused in terms of the death of Mr Cooper”, the Sentencing Judge declined to order the sentence be served on home detention.
During his remarks the Sentencing Judge referred to the seriousness of the offending. He stated:
This is serious offending for the reasons earlier discussed. Illicit drugs and drug trafficking are serious blights on the South Australian community. Apart from the health effects and personally destructive nature of these drugs in our community, anecdotally half the crime that this court sees is committed by people in the context of drug addiction or fuelled by illicit drug use, in particular, methamphetamine. This matter is an exact example of why trafficking is such a serious crime. The drugs you supplied Mr Cooper killed him.
(emphasis added)
His Honour remarked:
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)
The applicant challenges the finding that the drugs supplied killed Mr Cooper.
Legal principles
The legal principles to be applied when considering an appeal against sentence are well established. In Pateras v The Queen (“Pateras”)[1] this Court stated:[2]
[1] [2021] SASCA 107.
[2] Pateras v The Queen [2021] SASCA 107 at [15]–[17].
On appellate review of a sentencing decision the principles enunciated in House v The King are applicable. A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:
1. made an error of legal principle;
2. made a material error of fact;
3. took into account some irrelevant matter;
4. failed to take into account, or [in an exceptional case] gave insufficient weight to some relevant matter; or
5. arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
Members of an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted to a failure to properly exercise the discretion actually entrusted to the sentencing court. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.
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. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.
(citations omitted)
Grounds of appeal
The applicant seeks permission to appeal against her sentence on five grounds of appeal: first, that the Sentencing Judge infringed the R v De Simoni (“De Simoni”)[3] principle by finding that the applicant’s supply of the drug was causative of Mr Cooper’s death, and erred in taking that death into account while sentencing; secondly, that the Sentencing Judge erred by failing to order that the applicant serve the sentence on home detention; thirdly, that the Sentencing Judge erred by failing to suspend the sentence; fourthly, that the Sentencing Judge erred by taking into account a matter that had no supporting evidence (in making an anecdotal statement that half the crime the court saw was committed by or fuelled by people using illicit drugs, particularly methylamphetamine); and fifthly, that the sentence was manifestly excessive.
[3] (1981) 147 CLR 383.
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.
Consideration
Ground 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.
Support for Mr Armstrong’s submission can be found in the prosecution factual summary tendered before the Sentencing Judge. It relevantly stated:
5.The deceased Mr Cooper’s blood was found to contain toxic levels of methylamphetamine, MDMA and Diazepam. It was determined he died of a drug overdose …
7.The following messages indicated that ‘Tash’ (the defendant) had supplied Mr Cooper with the controlled and prescription drugs that ultimately caused his death
(emphasis added)
The prosecution factual summary is incorrect in parts and in other parts ambiguous. While the presence of Diazepam was detected in Mr Cooper’s blood sample it was not found at toxic levels. The forensic pathologist did not regard the presence of Diazepam as relevant to the cause of death. Both methylamphetamine and MDMA are controlled drugs. It was not the prosecution case that the applicant supplied either the methylamphetamine or the Diazepam detected in Mr Cooper’s blood. It was not accurate to say that the defendant “had supplied Mr Cooper with the controlled and prescription drugs that ultimately caused his death.” She had not been charged with supplying the controlled drug methylamphetamine, nor the prescription drug Diazepam.
The Sentencing Judge’s remarks are consistent with him relying on the prosecution factual summary. Nowhere in his Honour’s remarks does he refer to the drug MDMA. He only refers to methylamphetamine and cannabis when dealing with the trafficking charges; when dealing with the supply charge he only refers to “drugs”.
We note that during oral submissions the prosecutor stated that “Count 1 is a count of supplying a controlled drug, MDMA, and that is the unfortunate circumstances that led to the death of Mr Cooper”. He later submitted that the “fact that [Mr Cooper] died does illustrate the dangers associated with the consumption of this particular drug and exemplifies why the law treats the offence of supply as seriously as it does.” The Sentencing Judge responded, “the drugs Ms Cocks supplied killed the deceased, that’s the evidence.” Neither counsel corrected the Sentencing Judge’s misunderstanding of the evidence. It does not appear that the prosecution document, the factual summary, was corrected or amended.
Further, Mr Armstrong points to the finding of the Sentencing Judge that the supply of drugs killed Mr Cooper. Such a finding, he submits, was only open on the forensic evidence if the applicant had supplied both methylamphetamine and MDMA.
Mr Wilson, counsel for the respondent, while accepting that the sentencing remarks were not entirely clear, submits that when the remarks were read in their entirety the Sentencing Judge had not erred.
We accept the applicant’s submissions. Considering the Sentencing Judge’s remarks as a whole, we find that he has sentenced the applicant on an incorrect factual basis, namely that she supplied all of the drugs Mr Cooper consumed on 1 November 2019, and that the supply of those drugs caused Mr Cooper’s death. While Mr Armstrong also submits that, in effect, the Sentencing Judge had infringed the principles enunciated in De Simoni by punishing the applicant for an offence she was not charged with, namely the supply of methylamphetamine, it is not necessary for us to consider the submission. It was only open to the Sentencing Judge to find that the supply of MDMA contributed to the death of Mr Cooper, not that the applicant “supplied him with the drugs he took which then killed him”. The error is material and may have had a significant impact on the Sentencing Judge’s approach to sentencing.
Ground 5
In our view, whether the Sentencing Judge misunderstood the basis of the prosecution case or not does not matter as the notional starting point imposed of three years’ imprisonment for the supply charge was, in any event, manifestly excessive.
Though a single sentence was imposed for both the applicant’s supply and trafficking offences in accordance with s 26 of the Sentencing Act 2017 (SA), it is necessary to consider the separate starting points adopted by the Sentencing Judge prior to his exercise of the power under s 26. Starting points with respect to individual offences “always provide some insight into the risk of excess or inadequacy on account of the direct comparability with the maximum available penalty and, to a degree, comparable cases.”[4]
[4] Cuong v The Queen [2021] SASCA 89 at [8].
The starting point for the trafficking offences, which were committed against a background of approximately six months of similar offending, was four years and six months’ imprisonment. The starting point for the supply charge, against a background of previous supply to only the deceased, was three years’ imprisonment.
Mr Armstrong submits that the sentence imposed for the supply charge was so high that the Sentencing Judge had punished the applicant for the death of Mr Cooper, consistent with his finding that she supplied the drugs that killed Mr Cooper.
It was not challenged on appeal that the Sentencing Judge was permitted to have regard to the consequences of the applicant’s supply of MDMA to Mr Cooper, namely his death, when sentencing. As this Court stated in Hackett v The Queen (“Hackett”),[5] “the consequences of an offence must always be taken into account whether or not they were intended and whether or not they are more serious than they needed to be to constitute the offence”. As the prosecutor correctly submitted during the sentencing submissions, the death of Mr Cooper illustrated “the dangers associated with the consumption of this particular drug and exemplifies why the law treats the offence of supply as seriously as it does”. That is, the death of Mr Cooper highlights the risk in supplying drugs. The consequence of the supply, namely Mr Cooper’s death, puts the applicant’s offending towards the more serious end of offences of this type.
[5] [2021] SASCA 32 at [24] citing R v Chalmers & Anor [2012] SASCFC 128 at [15].
However, as Mr Armstrong submits, there was no basis to punish the applicant for the death of Mr Cooper as though it was directly or solely caused by the MDMA supplied by the applicant. While the death of Mr Cooper was a relevant consideration, it appears from the language used by the Sentencing Judge, and the sentence imposed, that his Honour may have allowed the consequence of death to overwhelm, erroneously, the sentencing process.
Mr Wilson, counsel for the respondent, conceded that the sentence of three years’ imprisonment was high. He helpfully referred the Court to R v Hoffman (“Hoffman”),[6] the facts of which are instructive. The appellant, Mr Hoffman, pleaded guilty to one count of supply of MDMA against the background of having supplied the drug to others on earlier occasions. Mr Hoffman was sentenced to a term of imprisonment of 12 months (before a reduction for his plea of guilty) suspended upon him entering into a bond to be of good behaviour.[7] On appeal, the Court resentenced the appellant, imposing a sentence of five months’ imprisonment (before a reduction for his plea), and suspended on him entering into a bond to be of good behaviour.[8]
[6] [2017] SASCFC 15.
[7] R v Hoffman [2017] SASCFC 15 at [2].
[8] R v Hoffman [2017] SASCFC 15 at [28].
We should have regard to the sentence imposed in Hoffman. As the Court outlined in Hackett, in seeking consistency, sentencing judges should have regard to what has been done in other cases.[9] A judge should bear in mind that a mere history of sentences that have been imposed for an offence, while identifying a range that has been imposed, does not necessarily establish that this is the correct range, or that its limits are correct.[10] Further, consistency in sentencing means consistency in the application of relevant legal principle, not numerical equivalence.[11] Hoffman, of course, does not establish a range. However, a sentencing judge ought to have regard to comparable cases unless there is a compelling reason not to do so, such as if the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant.[12] A case such as Hoffman can be used as a yardstick against which to examine a proposed sentence.[13]
[9] Hackett v The Queen [2021] SASCA 32 at [26].
[10] Hackett v The Queen [2021] SASCA 32 at [26] citing Wong v The Queen (2001) 207 CLR 584 at [59] (Gaudron, Gummow and Hayne JJ).
[11] Hackett v The Queen [2021] SASCA 32 at [26] citing R v Pham (2015) 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ).
[12] Hackett v The Queen [2021] SASCA 32 at [26] citing R v Pham (2015) 256 CLR 550 at [29] (French CJ, Keane and Nettle JJ).
[13] Hackett v The Queen [2021] SASCA 32 at [26] citing R v Barbaro (2014) 253 CLR 58 at [41] (French CJ, Hayne, Kiefel and Bell JJ).
In our view, the notional sentence of three years’ imprisonment for one count of supply is manifestly excessive. Even if, contrary to our earlier finding, the Sentencing Judge did not make the factual error, the sentence is so unreasonable or unjust as to suggest that an error has occurred, though the error in question does not explicitly appear on the face of the reasoning.[14]
[14] House v The King (1936) 55 CLR 499.
Mr Wilson submits that the Sentencing Judge had ameliorated the “high” sentence imposed for the supply offence by making it largely concurrent with the term of imprisonment imposed for the trafficking offences. It is correct, as Mr Wilson submits, that, in practical terms, the applicant has to serve only an additional six months of the 36 months’ imprisonment imposed for supply over and above the sentences for trafficking. However, the degree of concurrency may affect the reasonableness of the overall sentence but cannot affect the question of whether the sentence for the supply offence was manifestly excessive. The application of concurrency principles cannot operate to make ‘reasonable’ what is a plainly unreasonable and unjust sentence for that offence. To do so would distort sentencing principles.
Alternatively, Mr Wilson submits that if the Court found that the sentence was manifestly excessive, on resentencing the applicant, the Court should impose the same sentence for all the offending.[15] We agree with Mr Wilson that, in principle, the Court should approach the resentence task with that discretion in mind. However, in our view, a sentence different from and less severe than that imposed by the Sentencing Judge is appropriate.[16]
[15] Kentwell v The Queen (2014) 252 CLR 601 at [35] (French CJ, Hayne, Bell and Keane JJ).
[16] Criminal Procedure Act1921 (SA) s 158(7).
We would allow the appeal on this Ground, set aside the District Court sentence and resentence the applicant.
Resentence
Personal circumstances
At the date of sentencing, the applicant was 31 years of age, with three children aged 12, 10 and four months. The applicant shared care and custody of her two eldest children with her former partner and the father of those children. The four-month-old resided with the applicant and the applicant’s current partner.
The applicant completed Year 11 at Seaview Park High School. She worked in several jobs, including as a personal trainer, before health issues intervened. She ultimately became a stay-at-home mother. The applicant receives parenting and family welfare payments. She has no prior convictions.
Before the Sentencing Judge, the applicant relied upon a psychological report from Mr Allen Fugler. Mr Fugler noted that the applicant’s ongoing personal use of methylamphetamine and occasional use of cannabis assisted to alleviate her symptoms of chronic pain. He noted that the applicant sold drugs to a group of friends to defray the personal costs associated with this habit. She denied to Mr Fugler trafficking the drugs to make a profit other than to defray the costs of her habit.
Mr Fugler considered that the applicant required psychological assistance for her pain management but otherwise concluded that she had a “positive prognosis”.
The applicant accepts that the pleas of guilty to the two charges of trafficking are to be seen against the background of the trafficking having occurred for some months before she was arrested. The supply charge is to be assessed against the background of previous supply to Mr Cooper; it was not an isolated incident.
We turn to the trafficking offences. The question of the applicant’s motivation for trafficking is relevant to sentence. That is, did the applicant traffic in drugs to only support her habit or was there, as the Sentencing Judge found, an element of commerciality over and above the profit she made that enabled her to support her own habit.
The applicant admitted selling drugs to friends and that some of the cash seized came from friends for her to purchase more drugs. In her interview with Mr Fugler she stated that she sold the drugs to a group of friends and that she only did so to support her own habit. The prosecution did not allege that there was an element of commerciality over and above the profit she made that enabled her to defray the expenses related to her habit. It was accepted before the Sentencing Judge that there was nothing about the applicant’s personal circumstances or living conditions that suggested an element of commerciality.
Despite the prosecution position and the applicant’s submissions, the Sentencing Judge found that the applicant’s offending was “part of a busy, ongoing business” and that while she trafficked to support her own drug use, it “also had an element of commerciality which is plain both from the scale of [the applicant’s] trafficking and the cash seized”.
In our view, the evidence did not support the Sentencing Judge’s finding. It is important to bear in mind when the issue of the motivation for the offending is discussed, the difference between making a profit and the element of commerciality. By selling drugs to fund her own habit, the applicant was making a profit and obtaining a benefit. However, the Sentencing Judge went further in finding that not only did she make a profit but that there was an element of commerciality to her trafficking over and above the profit made to defray the costs of her addiction. That is, the Sentencing Judge found as an aggravating feature that part of the applicant’s motivation was to make money to fund her lifestyle. When he came to sentence that was an important finding.
In the context of drug trafficking offences, the features relevant to an evaluation of the seriousness of the offending and the determination of an appropriate and proportionate punishment are outlined in R vYoung (“Young”).[17] They include: [18]
[T]he quantity, purity and varieties of the drug or drugs involved; the defendant’s position in the drug trafficking hierarchy; the defendant’s role in the trafficking (e.g. principal/sole trader, courier, handler, assistant, etc); the level of reward the defendant may be expected to have received as a result of the trafficking; whether the trafficking was undertaken solely for profit or solely to support a drug addiction or combination; whether the offending was an isolated transaction or part of a course of conduct and in the latter case the period over which the defendant undertook the trafficking. The relevance of these features follow from the legislature’s prescription of relevant factors in s 44 of the [Controlled Substances] Act.
[17] R v Young (2016) 126 SASR 41.
[18] R v Young (2016) 126 SASR 41 at [216].
For street-level offenders motivated to a greater or lesser extent by profit, Young confirms a sentencing standard in the range of four to seven years.[19] Chief Justice Kourakis referred to the relevance of the motivation of profit as follows:[20]
The offending of a street dealer whose addiction has left him or her largely impoverished and who trades in very small amounts only to feed his or her addiction is at the lower end of the scale of objective seriousness. Other street dealers may not use at all or may be only occasional or social users who engage in street trading primarily to fund a comfortable, usually hedonistic, lifestyle. Other street-level dealers, motivated by profit alone, may sell drugs directly to the end user but not use drugs at all.
Sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit.
[19] R v Young (2016) 126 SASR 41 at [65]–[66].
[20] R v Young (2016) 126 SASR 41 at [65]–[66].
In Pateras, the Court considered the meaning of the expression “largely impoverished” used by the Chief Justice in the above-quoted passage from Young. The Court observed:[21]
It should be noted that Kourakis CJ was contrasting an addicted street dealer selling drugs to support the addiction with those selling drugs to fund a “comfortable, usually hedonistic lifestyle.” Impoverished in this context does not simply relate to the addict’s financial position. Working people may nonetheless find themselves impoverished because their employment is poorly paid or temporary, or because their financial, family and social capital has been depleted by their addiction. Addicts may well be able to feed themselves, pay the rent or mortgage, and own a car but still be living in impoverished circumstances.
(emphasis added)
[21] Pateras v The Queen [2021] SASCA 107 at [23].
The Chief Justice in Young also observed:[22]
There will be relatively greater scope for rehabilitation in the case of a first offender dealer whose offending arises out of an all-consuming addiction but who has voluntarily embarked on a course of withdrawing from use of the drug. A sentence of less than four years imprisonment may be appropriate for offenders of that kind. However, that level of leniency cannot continue to be extended in the face of persistent offending either whilst on bail, or after sentence on earlier offending. There is much less reason for leniency in the face of persistent and recidivist trafficking even for the heavily addicted street dealer. As the prospects of rehabilitation diminish and the need for personal deterrence increases, the addicted street dealer can expect sentences in the same order as those imposed on the profit driven offenders.
[22] R v Young (2016) 126 SASR 41 at [67].
While the Chief Justice in Young did not define what he meant by profit, in context, his comment that “sentences in the range of four to seven years continue to be appropriate for offenders who are motivated to a greater or lesser extent by profit” generally refers to those cases where there is an element of commerciality over and above a profit to defray costs.
Whether a defendant has trafficked to support their habit with or without an element of commerciality is only one, although an important one, issue of many, that a judge must consider when sentencing. The troublesome nature of the sentencing discretion arises from the unavoidable difficulty in giving weight to the various factors to which the court must have regard when determining sentence. Factors bearing on the determination of a sentence frequently pull in different directions.[23]
[23] Rendic v The Queen [2021] SASCA 23 at [6].
The standard set by this Court in Young, for the generality of cases, does not relieve sentencing judges from examining the salient features of each case and the extent to which they allow for some flexibility in its application. As much was emphasised recently by this Court in Davidson v The Queen.[24] The Court observed:[25]
While this sentencing standard provides sentencing judges with important guidance in arriving at an appropriate sentence, it is not to be applied in a rigid fashion and does not represent a ‘tariff’ that is applicable in all trafficking cases. Determination of an appropriate sentence remains an exercise of the sentencing Judge’s discretion having regard to all of the circumstances bearing upon the seriousness of the offending and the personal circumstances of the offender.
[24] [2021] SASCA 130.
[25] Davidson v The Queen [2021] SASCA 130 at [27].
Turning to the facts of the present matter, unlike the Sentencing Judge, we are unable to accept that the evidence establishes beyond reasonable doubt that the applicant was trafficking with an intent to profit over and above defraying the costs of her own habit. The Sentencing Judge relied upon the presence of $3,205 and the surrounding circumstances of the applicant’s trafficking to make this finding. In our view, this amount of cash and the presence of further small quantities of packaged drugs is consistent with the SMS evidence that the applicant’s dealings were contained to a small group of close contacts. As the applicant stated, the money found and seized was comprised largely of payments from friends which she intended to use to fund further purchases. The co-operative like nature of the applicant’s trafficking is significant. The evidence does not establish a motivation to profit beyond that of supporting her own addiction. It certainly does not suggest any improved, indulgent or hedonistic lifestyle. The applicant was in receipt of parenting and family payments and her social and financial circumstances clearly indicated she was “largely impoverished”. Counsel for the respondent did not make any submissions contradicting this suggestion before the Sentencing Judge.
The applicant has no prior convictions. From her arrest to the time of sentence the applicant attempted to rehabilitate herself and ceased using methylamphetamine. At the time of sentence, she was in a stable relationship and had a four-month-old child; her partner is supportive. References tendered before the Sentencing Judge established that the applicant was of good character and likely to be a good candidate for rehabilitation.
The appeal was allowed on 17 December 2021 and the applicant was granted bail. The parties agreed that prior to her release, the applicant spent 123 days in custody.
Trafficking and supplying illicit drugs are very serious offences. The consequences of drugs in society are well known and continue to cause great harm. As tragically demonstrated in this case, the risk of someone dying from the use, or misuse, of illicit drugs is ever-present. The drug trade depends upon addicted street dealers.
Taking all matters into consideration, we would impose one notional sentence for the two trafficking charges of three years and six months’ imprisonment.
Turning to the offence of supply, the death of Mr Cooper, while unintended, illustrates the seriousness of supplying drugs. As mentioned earlier, the consequences of the applicant’s conduct are relevant to the sentencing process. The consequence of Mr Cooper’s death shifts the offending towards the upper end of seriousness for this kind of offending. However, it must be borne in mind that there was no suggestion of any impurity in the MDMA supplied that caused his death. Nor can it be suggested that the applicant encouraged Mr Cooper to, or considered that he would, ingest a toxic quantity of the drug supplied.
For the offence of supply, Count 1, we would impose a notional sentence of six months’ imprisonment.
There is a degree of overlap in the matters relevant to the sentencing exercise for the offences, and in order to ensure the overall sentence is proportionate, we would make three months of the supply sentence concurrent with the three year and six‑month trafficking sentence.[26] The result is a term of three years and nine months’ imprisonment. We would reduce this term by 15 per cent on account of the applicant’s plea, to a sentence of three years, two months and eight days.
[26] Edmonds (A Pseudonym) v The Queen [2022] SASCA 11 at [64], [67]; R v Copeland (No 2) (2010) 108 SASR 398 at [102]–[106].
We would fix a non-parole period of one year and eight months.
From the notional head sentence and non-parole period, we make reductions on account of the applicant’s time served in custody. Following these reductions, a final sentence of two years, 10 months and eight days’ imprisonment is imposed pursuant to s 26 of the Sentencing Act 2017 (SA), with a non-parole period fixed at one year and four months.
In our view, despite the seriousness of the offending, given the applicant’s personal circumstances good reason exists to suspend the sentence on the condition that she enter into a bond, in the sum of $500, to be of good behaviour for a period of two years. Additional conditions on the bond are that she be under the supervision of a correctional services officer for a period of one year and six months and that she attend drug rehabilitation programs and pain management programs reasonably recommended by that officer.
Orders
We make the following orders:
1.Permission is granted for the applicant to rely on two additional grounds, Grounds 1A and 1B.
2.Permission to appeal is granted on Grounds 1 and 5.
3.The appeal is allowed.
4.The sentence imposed in the District Court is set aside.
5.On resentence, the applicant is sentenced to two years, 10 months and eight days’ imprisonment, with a non-parole period of one year and four months.
6.The sentence is suspended on the condition that the applicant enter into a bond to be of good behaviour with conditions.
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