R v Cocouz - [2000] QCA 370

[2000] QCA 370

COURT OF APPEAL

PINCUS JA
MUIR J
JONES J

CA No 140 of 2000

THE QUEEN

VASILE COCOUZ Applicant

BRISBANE

..DATE 12/09/2000

JUDGMENT

PINCUS JA: This is an application for leave to appeal against sentence. The applicant was convicted of two charges of unlawfully supplying a dangerous drug, and sentenced to six years' imprisonment on each count.

The offences were committed in July 1998, the month in which the applicant turned 40. His criminal history includes a number of driving offences, for two of which he was sentenced to short terms of imprisonment. His only other offence on the record is stealing, in 1986; that produced a fine.

The two instances of supply both related to heroin, the first batch containing about six grams in weight of pure heroin and being 66 per cent pure. The second batch contained about 10 grams of pure heroin and was 76 per cent pure. The price of the first was $2,000 and the second $3,500.

The applicant pleaded guilty, having initially told the police lies about these matters.

A point which was emphasised below was that trafficking was no part of the Crown case, not being alleged. The Crown relied upon Patena, CA No 107 of 1996, 28 May 1996, where there were eight counts of supplying heroin, and the sentence was five years' imprisonment with recommendation for parole after 15 months. The applicant there was a heroin user and it was not clear how much personal benefit she obtained from the transactions.

In the principal judgment, it was said that

"[O]ffenders who plead guilty to trafficking usually receive significantly longer sentences than those who are charged with and plead guilty to supply."

The Court pointed out that it cannot be assumed that

"a collection of offences of unlawful supply ...
will necessarily attract a penalty well below any trafficking offence."

The judgment said that the sentence of five years was a substantial one, but not manifestly excessive.

In the present case, there were two, as opposed to eight counts as there were in Patena. Mr Clark, who has addressed us helpfully on behalf of the Crown, points out, however, that in the present case the two instances of supply involved a substantial amount of heroin.

After discussing the facts of the present case, the learned sentencing Judge remarked:

"I regard the amounts of heroin as indicating that you were in business, in a substantial way, of supplying heroin."

His Honour also pointed out that the applicant is not an addict and "clearly on sold on the basis that the person with whom you dealt would on-sell in smaller amounts as a retailer".

The Judge also observed:

"I am told you own your own small business, but you were clearly supplementing the income you make from that by this more lucrative activity."

Unfortunately, the expressions used - referring to being in business - may convey the impression that his Honour was taking into account the fact of…

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.

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Details

Case: [2000] QCA 370
Decision Date: 12/09/2000

CaseChat Overview and Summary

The case of R v Cocouz, before the Queensland Court of Appeal, involves an appeal against the sentence imposed on the applicant, Vasile Cocouz, who was convicted of two counts of unlawfully supplying a dangerous drug, specifically heroin. The applicant was sentenced to six years' imprisonment on each count, totaling twelve years. The appeal was centered on the severity of the sentence, given the nature and circumstances of the offences, and the applicant's background. The Court of Appeal was required to determine whether the sentence was manifestly excessive and whether it appropriately balanced the factors of aggravation and mitigation.

The legal issues before the Court of Appeal included whether the trial judge had properly considered the applicant's limited criminal history and his plea of guilty, and whether the sentence imposed was disproportionate to the offences committed. The Court noted that while the amount of heroin supplied was substantial, the applicant was not found to be a heroin user and had only two counts of supply, which are typically associated with a lesser sentence than trafficking charges. The Court also highlighted the importance of the applicant's cooperation with the authorities, which, while not covered by a specific legislative provision, was acknowledged as a mitigating factor.

The Court of Appeal concluded that the sentence of six years' imprisonment on each count was indeed manifestly excessive. The judges emphasized that the applicant's limited criminal history, plea of guilty, and cooperation with authorities were significant mitigating factors that were not sufficiently considered by the trial judge. The Court substituted a sentence of four and a half years on each count, bringing the total sentence to nine years, which the judges deemed more appropriate given the circumstances of the case. This decision underscores the need for a balanced approach in sentencing, taking into account both the gravity of the offence and the personal circumstances of the offender.

The final order of the Court of Appeal was to grant the application for leave to appeal, allow the appeal, and substitute the sentences of four and a half years on each count for the sentences of six years imposed by the trial judge. This reduction reflects a more proportionate sentence that considers both the seriousness of the offences and the mitigating factors present in the applicant's case.

Orders