R v Collopy; R v Cooley - [2017] SASCFC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v COLLOPY; R v COOLEY
[2017] SASCFC 64
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Blue and The Honourable Justice Lovell)
9 June 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - OTHER SUBSTANCES AND OFFENCES INVOLVING MULTIPLE SUBSTANCES OR OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellants pleaded guilty to 30 counts of drug offences concerning a business they ran importing and distributing illicit drugs through the darknet. Mr Collopy also pleaded guilty to four counts of breaches of bail. In sentencing the Judge began with a starting point of 18 years imprisonment for the drug offences for each of the appellants. Mr Cooley was ultimately sentenced to 14 years and six months imprisonment with a non-parole period of eight years. Mr Collopy was sentenced to 15 years and eight months imprisonment for the drug offences and two sentences each of eight months imprisonment for the breaches of bail to be served cumulatively upon his sentence for the drug offences, with a non-parole period of 10 years.
The appellants appeal to this Court on the ground that their sentences are manifestly excessive. Mr Collopy also appeals on the ground that his sentences for the breaches of bail should be served at least partially concurrently with his sentence for the drug offences.
Held per Lovell J (Peek and Blue JJ agreeing):
1. The sentences imposed by the sentencing Judge for both appellants were manifestly excessive (at [76]).
2. The decision of the sentencing Judge to require Mr Collopy’s sentences for the breaches of bail to be served cumulatively was correct (at [87]).
3. Appeal allowed and appellants resentenced (at [91] - [92]).
Held per Peek J (Blue and Lovell JJ agreeing):
If offending of this nature involving the use of the darknet continues to occur, a heightened need for general deterrence may arise thus leading to a significant increase in the length of sentences (at [3]).
Controlled Substances Act 1984 (SA) s 32(3), 18(3), 18(1c); Criminal Law Consolidation Act 1935 (SA) s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Millard (2008) 103 SASR 1; R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276, discussed.
Wong v The Queen (2001) 207 CLR 584; DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; R v Lutze (2014) 121 SASR 144; Berner v MacGregor [2013] QDC 33; Dinsdale v The Queen (2000) 202 CLR 321; R v Young (2016) 126 SASR 41; The Queen v Flaherty (1981) 28 SASR 105, considered.

R v COLLOPY; R v COOLEY
[2017] SASCFC 64
Court 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.

Continue reading R v Collopy; R v Cooley

Details

AGLC: R v Collopy; R v Cooley [2017] SASCFC 64
Case: [2017] SASCFC 64
Decision Date: 9 June 2017

CaseChat Overview and Summary

In *R v Collopy; R v Cooley*, the appellants, Mr Collopy and Mr Cooley, appealed against the sentences imposed upon them by the sentencing judge. Both appellants had pleaded guilty to 30 counts of drug trafficking offences relating to their operation of a business that imported and distributed illicit drugs through the darknet. Mr Collopy also pleaded guilty to four counts of breaching bail. The appeals were brought on the sole ground that the sentences were manifestly excessive.

The central legal issues before the Court of Appeal were whether the sentencing judge erred in determining the appropriate starting point for the sentences and whether the final sentences, including the non-parole periods, were manifestly excessive in all the circumstances of the offending. This involved considering the nature and scale of the drug trafficking operation, the use of the darknet and cryptocurrencies in the commission of the offences, and the application of sentencing principles, including the assessment of the gravity of the offences and the appropriate discount for the guilty pleas.

The Court of Appeal considered the sentencing judge's approach, which involved a starting point of 18 years imprisonment for the drug offences for each appellant. The judge had taken into account the significant scale of the operation, the importation of drugs from overseas, and the use of sophisticated methods such as the darknet and bitcoins to facilitate anonymous transactions. The court acknowledged that while the darknet and bitcoins offer anonymity and can be used for legitimate purposes, their use in criminal enterprises, such as drug trafficking, significantly increases the gravity of the offending. The court ultimately found that the sentences imposed were not manifestly excessive, considering the seriousness of the drug trafficking offences and the need for general deterrence.

Mr Cooley was sentenced to 14 years and six months imprisonment with a non-parole period of eight years. Mr Collopy received a sentence of 15 years and eight months imprisonment for the drug offences, with cumulative sentences of eight months for each of the four bail breaches, resulting in a total sentence of 18 years and eight months imprisonment, and a non-parole period of 10 years. The Court of Appeal dismissed both appeals.

Orders

Orders of the court

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Background

Background to the litigation

The appellants appeal against their sentences on the ground that they are manifestly excessive. Background The appellants sourced illicit drugs from overseas - primarily India, the Netherlands and Belgium - and purchased them via the market places of Black Market Rebooted (BMR) and Sheep (SHP) which are hosted on the darknet. They then on sold the drugs to consumers in Australia through their own stall set up on BMR and SHP called AUVip. All transactions were conducted in bitcoins. The darknet is a network of services that allows people to browse and publish online anonymously. It is used for both legitimate and illegitimate purposes. In sentencing, the Judge referred to the following comments contained in the prosecution’s submission about the darknet and the use of bitcoins:The darknet is a network of servers located across the world that allow for anonymous browsing and publishing. This network … is only accessible by the use of specialised software. (An example is the The Onion Router Browser. Such) software prevents the disclosure of the source’s IP address or its location by use of encryption and obfuscation. The software is ‘open source’ and therefore free and available on the internet at the click of a button. The darknet can be accessed by any computer/smartphone/device that is linked to the internet which has downloaded the requisite software. The darknet had a legitimate birth, initially developed by the United States Navy for security purposes. The software is maintained and updated by persons who support the concept of a free and democratic online environment.The uses to which the darknet is put include political discourse in countries with repressive regimes; to circumvent censorship; by law-abiding people who do not wish to have their internet usage recorded by governments or large corporations and for peer to peer communication and file sharing. It is also used for criminal activity including drug dealing, gun-running, child pornography, counterfeit documents, money and credit cards.In 2008 a paper was published on the internet which related to bitcoins. A bitcoin is a digital trans-national crypto-currency or commodity. It does not exist in any physical form and it is not issued or controlled by any central banking authority. Bitcoin transactions allow for an electronic payment system that is based on crypto-graphic proof, as opposed to a trust relationship with a third party such as a financial institution. Bitcoins transactions are instantaneous and do not incur costs. … Bitcoins can be purchased from any number of online exchanges through electronic transfer from the purchaser to the seller’s bank accounts, by credit card or by use of other crypto-currency.Only 21 million bitcoins would ever be ‘in existence’. In the past a bitcoin has had a value of more than $US1000. When I heard submissions in early February this year its value was just over $US460. Many bitcoin transactions utilise escrow. A buyer sends the bitcoin payment to the escrow address. …, the seller can see when that has occurred and forwards the items purchased to the buyer. Once received … the marketplace releases the bitcoins to the seller. … Once a transaction is confirmed … (it is) available for ‘mining’. Because bitcoin transactions are anonymous and do not require third party services or incur costs, they are ideal for commercial transactions, regardless of their legality or otherwise on the darknet.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J, LOVELL J

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