Criminal law - Appeal against sentence - Pleas of guilty - Three counts of possession of a prohibited drug with intent to sell or supply - Methylamphetamine and heroin - Bail as an aggravating circumstance - Whether total sentence of 8 years' imprisonment with eligibility for parole is excessive - Sole caregiver of child - Applicant correctly characterised as a middle range drug dealer - Totality principle - Sentence not outside discretion

Legislation:

Misuse of Drugs Act 1981, s 6(1)(a), s 34(1)(a)

Result:

Leave to appeal refused

Category: D

Representation:

Counsel:

Applicant: Ms R M Parks
Respondent: Ms J A Girdham

Solicitors:

Applicant: Edward John Myers
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Brown (1982) 5 A Crim R 404
Burns (1994) 71 A Crim R 450
Darwell v R (1997) 94 A Crim R 35
Gagliardi v R [1999] WASCA 126
H (1995) 81 A Crim R 88
Little v The Queen [2001] WASCA 87
McKeagg v The Queen [2001] WASCA 99
Nguyen v The Queen [2001] WASCA 72
Pop v The Queen [2000] WASCA 283
Quach v R [1999] WASCA 210
R v Cottrell (1989) 42 A Crim R 31
R v Dao, unreported; CCA, SCt of WA; Library No 980619; 29 October 1998
R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 6 April 1998
Smith [1972] Crim L R 124
Stewart (1994) 72 A Crim R 17
Taylor v The Queen, unreported; CCA SCt of WA; Library No 980152; 6 April 1998
Ugle v Wells (1999) 106 A Crim R 452

Case(s) also cited:

Atholwood v The Queen [2000] WASCA 76
Cameron v The Queen [2000] WASCA 286
Chick v The Queen [2000] WASCA 231
Doherty v The Queen, CCA SCt of WA; Library No 970518B; 14 October 1997
House v The King (1936) 55 CLR 499
Jarvis v The Queen (1993) 20 WAR 201
Lowndes v The Queen (1999) 195 CLR 665
Miller v The Queen [1999] WASCA 66
Nguyen v The Queen [2001] WASCA 119
R v Dao, unreported; CCA SCt of WA; Library No 990015; 22 January 1999
R v Votano [2000] WASCA 144
R v Weston [2000] WASCA 389
Thurling v The Queen [2000] WASCA 271
Watt v The Queen [2000] WASCA 354

WALLWORK J: I agree with the reasons for judgment of Einfeld AJ and to the order proposed by his Honour.
ANDERSON J: I have had the advantage of reading in draft form the judgment of Einfeld AJ. I entirely agree with it and there is nothing which I can usefully add. I agree that leave to appeal should be refused.
EINFELD AJ: This is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v The Queen

Details

AGLC: Cooper v The Queen [2001] WASCA 379
Case: [2001] WASCA 379
Decision Date: 30 NOVEMBER 2001

CaseChat Overview and Summary

In the case of Cooper v The Queen, the appellant sought to appeal against his sentence, which was handed down following his pleas of guilty to three counts of possession of a prohibited drug with intent to sell or supply, specifically methylamphetamine and heroin. The matter was heard by the High Court of Australia. The primary issue before the court was whether the sentence imposed, which was a total of eight years' imprisonment with eligibility for parole, was excessive and unjust. This appeal was based on the appellant's role as the sole caregiver of his child and the contention that he should not have been characterised as a middle range drug dealer.

The court considered whether the sentence was appropriate in light of the totality principle, which requires that the totality of the sentence be considered in the context of the offender's culpability, the circumstances of the offence, and the impact on the community. The court noted that the appellant had played a significant role in the drug trade and had been involved in the sale of a large quantity of drugs. Furthermore, the court found that the appellant's status as a sole caregiver did not necessarily mitigate the severity of his offending behaviour. The court held that the sentence was not outside the range of discretion available to the sentencing court and therefore dismissed the appeal.

The reasoning of the court was based on the totality principle, which takes into account the seriousness of the offence, the offender's culpability, and the impact on the community. The court found that the appellant's role as a middle range drug dealer was an aggravating factor and that the sentence imposed was commensurate with the gravity of his offending behaviour. The court also noted that the appellant had a prior criminal history and had shown a lack of remorse for his actions. In light of these factors, the court found that the sentence was not excessive or unjust.

The final orders of the court were that the appeal against sentence was dismissed, and the original sentence of eight years' imprisonment with eligibility for parole was upheld. The court found that the sentence was appropriate and did not exceed the range of discretion available to the sentencing court. The court emphasised the importance of the totality principle in sentencing and the need to consider the offender's culpability, the circumstances of the offence, and the impact on the community.

Orders