R v Collopy; R v Cooley
[2017] SASCFC 64
•9 June 2017
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 64Court of Criminal Appeal: Peek, Blue and Lovell JJ
PEEK J.
I would allow the appeal for the reasons given by Lovell J and I agree with the orders his Honour proposes.
I should add that I recognise the force of the respondent’s contention that a high level of general deterrence is required here. It is correctly submitted that, in an era when many people spend a great deal of their time on the internet, persons who would otherwise not have become “traditional” drug dealers might become fascinated by a modus operandi involving “the darknet”, “bitcoins” and so forth and foolishly decide to try the same thing themselves. Indeed, I note that one or both of the appellants was motivated to set up the present scheme by his experience with the notorious “Silk Road” website.
In the end, I have been persuaded by the reasons of Lovell J that the present sentences are manifestly excessive and that the sentences he proposes do adequately address the present need for general deterrence. However, I indicate that if this type of enterprise continues to be encountered in South Australia in the future, a heightened need for general deterrence may become apparent and lead to a significant increase in the length of prison sentences in cases of the present kind.
BLUE J.
I agree with Lovell J. I also join with Peek J in warning that, if this type of enterprise continues to be encountered in future, the need for general deterrence may lead to a significant increase in sentences in cases of this kind.
LOVELL J.
Introduction
Mr Collopy and Mr Cooley (the appellants) ran a business in importing and distributing illicit drugs located on the darknet. The appellants sourced drugs from overseas, ensuring that they were repackaged by a third party overseas in another country so as to disguise their origins, before selling them throughout Australia via the postal system. Operating on the darknet, the appellants were free from surveillance and conducted all transactions in bitcoin, rendering payments almost untraceable.
Mr Collopy and Mr Cooley pleaded guilty to 30 counts of drug offences on 19 October 2015 committed between 1 August 2013 and 22 November 2013. The charges were:
121 counts of trafficking a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984;
2Four counts of possessing a prescription drug contrary to s 18(3) of the Controlled Substances Act 1984;
3Three counts of supplying a prescription drug contrary to s 18(1c) of the Controlled Substances Act 1984;
4Two counts of attempting to possess a prescription drug contrary to s 18(3) of the Controlled Substances Act 1984 and s 270A of the Criminal Law Consolidation Act 1935.
On 23 May 2016 the appellants were sentenced in the District Court for these offences.
Mr Collopy also pleaded guilty to an additional four counts of breaching bail that had been granted for the above charges. These breaches of bail related to two separate sets of breaches, occurring in September 2014 and May/June 2015 respectively, in which Mr Collopy was found to be in possession of methylamphetamine and electronic devices capable of connecting with the internet on each occasion. This was contrary to his agreed conditions of bail.
In sentencing the appellants the Judge said that the offences common to each appellant could each be considered as belonging in one of three categories:
The first category comprises 14 counts which arise from the seizure of parcels found to contain illicit substances which had been acquired from suppliers on the darknet and were sourced from overseas.
The second category involves 11 counts arising from the sale and supply of illicit substances to customers in Australia who had purchased drugs through an internet site AUVip. These purchasers received the substances via Express Post.
The third category comprises five counts concerning drugs and prescription medication seized when police arrested you. These were found in a tub in a spare room at your house, Mr Collopy.
I set out a table relating to the charges.
Count Section (CSA) Offence Drug Amount/ Buyer Max Penalty 1 32(3) Trafficking MDMA 21.7 gms $50K and/or 10 years 2 32(3) Trafficking Methylphediate x15 tabs Ibid 3 32(3) Trafficking Ketamine 32 gms Ibid 4 32(3) Trafficking Oxycodone x61 tabs Ibid 5 18(3) & 270A CLCA Attempt to possess a prescription drug Alprazolam x466 tabs 2/3rds of either $10K or 2 years 6 32(3) Trafficking MDMA 39.5 gms (x100 tabs) Ibid 9 32(3) Trafficking Methylamphetamine 56 gms Ibid 11 32(3) Trafficking Ketamine x50 tabs Ibid 13 32(3) Trafficking Cocaine 14.2 gms Ibid 14 32(3) Trafficking MDMA 126 gms (x381 tabs) Ibid 15 32(3) Trafficking Cocaine 9.9 gms Ibid 16 32(3) Trafficking Methylamphetamine 60 gms Ibid 17 32(3) Trafficking Hydrocodone x200 tabs Ibid 19 18(3) & 270A CLCA Attempting to possess a prescription drug Diazepam x497 tabs 2/3rds of either $10K or 2 years 21 32(3) Trafficking Methylamphetamine Morrison $50K and/or 10 years 22 32(3) Trafficking Methylamphetamine Pearce Ibid 23 32(3) Trafficking Methylamphetamine Lovell Ibid 24 32(3) Trafficking MDMA Tran Ibid 26 32(3) Trafficking Methylamphetamine Geunich Ibid 27* 18(1c) Supplying a prescription drug Diazepam Pearce $10K or 2 years 28 32(3) Trafficking Methylamphetamine Morrison $50K and/or 10 years 29* 18(1c) Supplying a prescription drug Diazepam Geunich $10K or 2 years 30 32(3) Trafficking Methylamphetamine Marcus $50K and/or 10 years 32* 18(1c) Supplying a prescription drug Diazepam Vanhuynh $10K or 2 years 34 32(3) Trafficking Methylamphetamine Morrison $50K and/or 10 years 35* 18(3) Possessing a prescription drug Alprazolam x 114 tabs $10K or 2 years 36* 18(3) Ibid Diazepam x 206 tabs Ibid 37* 18(3) Ibid Lorazepam x 82 tabs Ibid 38* 18(3) Ibid Oxycodone x 10 tabs Ibid 39 32(3) Trafficking MDMA 2.75gms $50K and/or 10 years “*” denotes summary offence
The first category, as described by the Judge, includes the amount of the drug as these drugs were seized. The second category of offences does not include an amount of the drug as the size of the transaction is unknown.
The Judge sentenced Mr Cooley to a total of 14 years and six months imprisonment (reduced from 18 years on account of his guilty pleas and co‑operation with the police) with a non-parole period of eight years.
Mr Collopy was sentenced to total terms of imprisonment of 17 years with a non-parole period of 10 years. His sentences comprised a term of 15 years and eight months for the drug offences (reduced from 18 years on account of his guilty pleas and time spent in custody) and two additional sentences of eight months each for the two sets of breaches of bail. The Judge ordered these three periods to be served cumulatively.
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.
It can be observed that the darknet hosts various market places which enable people to buy and sell illegal goods, including drugs, with anonymity. The most famous of these markets was Silk Road until its closure in early October 2013.
Between April 2013 and October 2013 Mr Collopy purchased drugs for his own use through Silk Road on 106 occasions. The value of these purchases was almost $57,000. This experience allowed Mr Collopy later to source potential suppliers for the drug importation enterprise undertaken by himself and Mr Cooley which is the subject of this appeal. In October 2013 this venture, AUVip, was launched.
On 3 October 2013 AUVip was ready to begin trading on Silk Road. However AUVip never traded on Silk Road due to that site being seized by the Federal Bureau of Investigation following its founder’s arrest the previous day. Despite this, according to a message posted on AUVip’s website on 11 October 2013, the appellants listed AUVip on BMR within hours of Silk Road being seized and were also listed on SHP the following week.
Drugs the appellants imported were first sent to re-mailing centres in either the USA, UK or Ireland where the packages were repackaged, divided into smaller packets and then resent to the appellants in Australia. The purpose of this process was to decrease the likelihood of detection by having the parcels arriving from less suspicious locations and with smaller quantities of the drug.
The appellants had established false identities and created false names, documentation, passports and scanned signatures. Applications in false names were addressed to the United States Postal Service for the appointment of agents to collect mail addressed to Lucas Robin. Lucas Robin did not exist. An illegitimate passport in the name of Lucas Robin containing a stock photograph for sale on the internet was utilised by the appellants as well as a false United Kingdom passport in the name of Gareth Cooper; this contained a photograph of Mr Cooley.
The parcels were sent to the address of 5/18 Ellemsea Circuit, Lonsdale and were primarily addressed to the fictitious identity of Lucas Robin. This address was immediately adjacent to Mr Cooley’s work address.
Australia Post intercepted a number of parcels addressed to Lucas Robin at 5/18 Ellemsea Circuit, Lonsdale all of which contained drugs. The police were informed by Australia Post of the interception and a controlled delivery was conducted whereby SAPOL kept surveillance on the package to see who ultimately collected it from the post office.
At about 2.30pm on 22 November 2013 Mr Cooley attended an Australia Post office at Lonsdale and collected the parcel that had been intercepted. Upon leaving the post office Mr Cooley was arrested.
Mr Cooley’s house was then searched. In his car police found handwritten spreadsheets detailing drug sales on BMR and SHP, $6,850 in cash, two digital scales which tested positive to methamphetamine, 3.39 grams of crystallised methamphetamine and a bag of vacuum sealed bags.
Police attended at Mr Collopy’s house, searched it and arrested him. At the premises they found computer generated spreadsheets recording drug sales on BRM and SHP; various computing equipment including USBs, laptops and external hard drives; a postal parcel addressed to Lucas Robin of 5/18 Ellemsea Circuit, Lonsdale and other various drugs and drug paraphernalia.
A fortuitous finding of a computer password enabled the police to uncover the extent of the trafficking.
The Judge found that the appellants intended to operate AUVip for an extended period of time and that there was no closed period of intended offending. The Judge found that the appellants had plans to operate a serviced office located in Westpac House where all incoming parcels of drugs would be sorted and then sent on to their local purchasers. The respondent submitted that this office was due to be opened as soon as within one week of the appellants’ arrests. This would have meant that, even if a parcel was intercepted in the manner which occurred in this case, the authorities would only be able to track it as far as the serviced office at which point there would be almost nothing to link the appellants to it. This is because the serviced office was arranged using the false United Kingdom passport in the fictitious name of Gareth Cooper which contained a photograph of Mr Cooley. The photograph is the only link to the appellants. Further, even if the authorities were to have searched the appellants’ houses once the office was up and running, none of the imported drugs for AUVip would have been present.
Payment for the appellants’ importing and selling of drugs was in bitcoins. The amount earned over the six week period could not be definitively stated. From Facebook discussions between the two appellants, it is likely to have been around $108,000 for the six week period.
Counsel for the appellants did not dispute these findings.
Breaches of bail
These offences only applied to Mr Collopy. Following his arrest on 22 November 2013 Mr Collopy remained in custody for four days before being released on bail on 25 November 2013. As part of his strict bail conditions Mr Collopy was not to be in possession of any electronic device capable of connecting to the internet, nor was he to be in possession of any drugs.
On 24 September 2014 police found two new encrypted Blackphones, sophisticated computing equipment and methylamphetamine at Mr Collopy’s house. A bitcoin mining computer bank set-up was also operating in the house. This occasion comprised the first and second of four breaches of bail charges.
Bail was revoked; however on 10 April 2015 Mr Collopy was granted bail again. Six weeks later Mr Collopy tested positive to amphetamine and methylamphetamine in breach of his bail conditions. Following this failed test police again searched Mr Collopy’s premises on 5 June 2015 and located a Blackphone, namely a device capable of accessing the internet. The failed drug test and the possession of the Blackphone represent the third and fourth breach of bail charges.
Sentence Imposed
The Judge sentenced Mr Cooley to 14 years and six months imprisonment with a non-parole period of eight years. The Judge started with a sentence of 18 years and initially reduced it to 16 years and two months in recognition of his guilty plea. This was then further reduced to the final sentence due to cooperation with police.
Mr Collopy was sentenced to total terms of imprisonment of 17 years with a non-parole period of 10 years. His sentences comprised of a term of 15 years and eight months for the drug offences and two additional sentences of eight months each, to be served cumulatively, for the two separate sets of breaching of bail (two counts in each set). The Judge also identified 18 years as the starting point for the drug offences before reducing that part of the sentence to 16 years and two months on account of his guilty pleas. The Judge then further reduced the sentence to 15 years and eight months in recognition of the time Mr Collopy had already spent in custody.
Both appellants submit that their sentences are manifestly excessive.
Grounds of Appeal
Both appellants submitted that there was an outcome error rather than an error in the process undertaken by the Judge in arriving at the sentences.
Mr Collopy
The primary submission of Mr Redford, Mr Collopy’s counsel, was that the total head sentences of 17 years with a non-parole period of 10 years are manifestly excessive. Counsel submitted that the sentencing Judge erred in that:
1the starting point of 18 years for the drug offences was too high;
2the starting point of nine months for the breaches of bail was too high;
3his Honour found the offending was not for a closed period of time;
4his Honour failed to consider the principle of totality after the addition of the bail sentences;
5his Honour failed to take into account the expert opinion regarding Mr Collopy’s risks of reoffending; and
6the potential for the appellant to be on parole for up to seven years is excessive.
Mr Cooley
Mr Sale, counsel for Mr Cooley, submitted that:
1the starting point of 18 years was too high and could not be reconciled with the authorities, especially R v Millard;[1]
2the Judge did not consider the principle of totality; and
3the 10 per cent discount applied in recognition of the appellant’s contrition and assistance to police was insufficient.
[1] (2008) 103 SASR 1.
Appellants’ Submissions
There was common ground between the submissions of the appellants. Both appellants submitted that the starting point for the imposition of the head sentences was too high for the offending charged. They submitted that the sentences and non-parole periods were manifestly excessive. Both relied on comparison with the sentence imposed in R v Millard.[2]
[2] (2008) 103 SASR 1.
Mr Redford initially challenged the factual finding of the Judge that the enterprise “was highly sophisticated”. However during argument counsel conceded that, rather than the description being necessarily incorrect, the Judge simply gave too much weight to this finding. The concession was properly made. The use of the darknet, encrypted phones and computers, payment by bitcoin, the setting up of the system of importation through the use of false passports and names, and the repackaging of overseas parcels to avoid detection justified the description used by the Judge.
Counsel for Mr Cooley submitted that the Judge was faced with an unusual mode of trafficking. He submitted that rather than the graduated pyramid of street level traders leading to middle level distributors of varying degrees of commerciality and sophistication, ultimately leading to a “king pin”, the offending here presented a flat structure. The appellants, he submitted, were selling to end users and so they occupied all positions between overseas producers/suppliers and end users. It was submitted that the overall operation was not as large as some and it was the scale of the operation and their roles that needed to be assessed. Mr Collopy’s counsel made a similar submission.
It was submitted that the criminal culpability of the appellants was less than in a typical physical operation, as their method of operation meant that there was no violence, no guns and no opportunity for robbery to take place. That may be so but it does not rule out the opportunity for all of those matters to occur at either end of the transactions, albeit outside of the control of the appellants. It is the harm to the ultimate user which is of principal concern in sentencing for drug offences. Further, the method of operation here, namely the use of the internet as a safe and reliable way to sell and buy drugs, obviously carries the risk of a proliferation of that business model. The method of selling is of course just one factor to be taken into account. That is relevant to the question of general deterrence.
Counsel for each of the appellants relied on the case of R v Millard[3] to support the submission of an outcome error.
[3] (2008) 103 SASR 1.
Mr Millard pleaded guilty to 15 trafficking offences, 10 counts concerning sales and five counts concerning possessing intending to sell, involving ecstasy, methylamphetamine, amphetamine, LSD, cocaine and cannabis. He also pleaded guilty to two firearm offences. The offences concerned drugs and firearms located by police in a shed on Mr Millard’s mother’s premises. The estimated street value of the drugs seized was $1,200,000 and $246,550 in cash was also located.
Mr Millard was working for a man called Gee who lived in Sydney and to whom he owed $11,000. Mr Millard received instructions from Gee to deliver drugs and collect payment.
All of the trafficking offences carried a maximum penalty of 25 years imprisonment and a $200,000 fine, except the single offence of trafficking in cannabis which carried a maximum penalty of 25 years imprisonment and a $500,000 fine.
Mr Millard was originally sentenced to a term of imprisonment of 10 years with a non-parole period of five years. The sentencing Judge said that he would have imposed a head sentence of 15 years were it not for Mr Millard’s early guilty pleas. On Crown appeal Mr Millard was resentenced on the basis his original sentence was manifestly inadequate. He was resentenced to a head sentence of 15 years and a non-parole period of eight years.
The quantity of the drugs in which Mr Millard was dealing, the frequency of his dealing, his trusted position in the operation and the fact that he dealt to middle level dealers who in turn on-sold the drugs to street dealers meant that his offending was “at the highest level of seriousness.”[4] The Court found that he was “relatively high in the hierarchy”, a “right-hand man in South Australia of one of the men who was directing operations from interstate” and “the trusted deputy of someone at or near the top.”[5] Therefore the Court determined that a starting point of not less than 20 years imprisonment was called for in that case.[6]
[4] R v Millard (2008) 103 SASR 1, 4 [19].
[5] Ibid 8 [53].
[6] Ibid 5 [32].
The amount of methylamphetamine possessed by Mr Millard was substantially higher than that possessed or trafficked by the appellants. Mr Millard had just over three kilograms of pure methylamphetamine compared to approximately 118 grams trafficked by the appellants. He also had substantially more cocaine and approximately $250,000 cash in hand and stock valued at over $1.2 million.
Mr Redford also handed up a schedule of other drug related sentencing cases.
In R v Donald & Ors,[7] the appellants conducted a comprehensive drug trafficking enterprise involving purchasing large quantities of cannabis and methylamphetamine and on-selling those drugs in smaller amounts to regular buyers around the Port Augusta area. The offending of each appellant was serious and persisted over a long period of time. The time span of the charges was six months. The charges in that case were representative of a course of conduct and it was accepted that the offending had occurred over a greater period than the six months. Although all three appellants were addicted to drugs to varying degrees, commercial gain was the motivating factor.
[7] R v Donald; R v Pitt; R v Whitaker (2016) 126 SASR 276.
Sentencing in relation to those appellants was made more difficult due to the fact that pleas to some counts were entered at different times to others. Thus different statutory discounts applied depending on the time of the plea.
Taking those matters into account, on re-sentencing by this Court the starting point for Mr Donald and Mr Whitaker was around 18 years imprisonment before discounts.
The length of time of offending and the amount of drugs trafficked was substantially greater than what was involved in this matter.
Respondent’s submissions
The respondent submitted that the offending here was more serious than in Millard notwithstanding the quantities of the drugs involved. The respondent submitted that “the appellants were not in the upper range in the hierarchy of drug dealing, they were not acting under the direction of any third party, they were the business.” This submission carries with it the implication that the appellants were at or near the “apex” of drug distribution.
The respondent submitted that there was considerable planning and preparation involved in setting up the business. The business was highly sophisticated. The respondent pointed to the fact that the business used the encrypted side of the internet for the importation and distribution of drugs. It relied on the importation of small quantities and quick on-sale of small amounts of drugs to avoid detection. The use of fictitious identities, the method of packaging and the small amounts involved assisted evasion and limited any action taken by authorities if the drugs were intercepted. The respondent pointed to the fact that the involvement of Mr Collopy was discovered by chance.
In effect the business model of the two appellants was to provide a shop front for the purchase of drugs.
The operation was ongoing and ceased only due to the detection of Mr Cooley.
Consistency in Sentencing
Gleeson CJ in Wong v The Queen pointed out that “all discretionary decision-making carries with it the probability of some degree of inconsistency”.[8] However his Honour pointed out that like cases should be treated in a like manner and that the administration of criminal justice should be systematically fair, and that involves, amongst other things, reasonable consistency.
[8] (2001) 207 CLR 584, 591.
Consistency is not demonstrated by, and does not require, numerical equivalents. The consistency that is sought is consistency in the application of the relevant legal principles.[9]
[9] Hili v The Queen (2010) 242 CLR 520, 535 [48]-[49].
In DPP (Cth) v De La Rosa, a case involving consistency of sentencing in Commonwealth matters where the Court itself conducted research into the range of sentences applied nationally, Simpson J stated:[10]
A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of the courts.
But it would be a mistake to regard an established range is fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament….. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned.
[10] (2010) 79 NSWLR 1, 70-71 [303]-[304].
This passage was approved in Hili v The Queen.[11]
[11] (2010) 242 CLR 520, 537 [54].
The appellants submitted that the error that occurred in sentencing was an “outcome error” as opposed to a “process error”.
It is well established that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. Error must be demonstrated.
The task of a Court of Criminal Appeal is to determine whether there was error made in sentencing as explained in House v The King:[12]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred
[12] (1936) 55 CLR 499, 505.
Vanstone and Parker JJ observed in R v Lutze that:[13]
The sort of error referred to as “specific” or “process error” is not merely a perceived failure to give appropriate weight to a particular factor it is an identifiable error of fact or law, which in all but the rare case will be express…
A submission that the sentencing judge did not give adequate weight to a fact that is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error or process error. At most, you can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”.
[13] (2014) 121 SASR 144, 153-154.
By asserting here that the sentence was manifestly excessive, the appellants contend that the Judge’s orders were “unreasonable or plainly unjust” as neither appellant submitted that any specific error could be identified “as would be the case if the sentencing Judge was said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts or not taken into account some material considerations.”[14] Leaving aside the question of totality, the appellants assert that it can be inferred from the result that there was a failure by the Judge properly to exercise the sentencing discretion.
[14] Berner v MacGregor [2013] QDC 33, [12].
In Dinsdale v The Queen, Gleeson CJ and Hayne J stated:[15]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
[15] (2000) 202 CLR 321, 325-326 [6].
What reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence.[16] The circumstances of the offending and the personal circumstances of each offender are therefore important elements.
[16] Hili v The Queen (2010) 242 CLR 520, 539 [60].
Discussion
The respondent accepted that the method of trafficking involved here was not the “traditional model”. Indeed the prosecution submitted that the “new model” should be seen as an aggravating feature as the method involved great secrecy making detection very difficult. However, simply asserting that the two appellants “were the business” does little to illuminate their role in the drug trade. In one sense, if people join together to traffic drugs they are “the business”. Such was the case in R v Donald & Ors. They ran a “business” of sourcing drugs, obtaining possession of them, and then on-selling to others. Mr Donald and Mr Whitaker were “the business”.
The two appellants, in effect, were trafficking in a similar way, but using the darknet and bitcoins. Their method of trafficking was more secure and therefore difficult to detect, but the “business” itself was no different to others that come before the courts. It could not be said that they were at the “apex” because they were sourcing drugs from overseas wholesalers nor could it be said they were low level street dealers.
In R v Young Kourakis CJ (with whom Vanstone and Stanley JJ agreed) stated:[17]
In defining a class of offending, an intermediate Court of Appeal will focus on the primary characteristics of that offending. In the case of commercial trafficking of drugs, the particular drug, its quantity, the motive for the offending, and the level in the drug distribution hierarchy of the offender may serve to define the “objective factors of the ordinary case”.
[17] (2016) 126 SASR 41, 55 [38]; see also The Queen v Flaherty (1981) 28 SASR 105, 107-108.
Kourakis CJ also stated:[18]
The text of the Amendment Act suggests that its purpose was to differentiate between trafficking based on the degree of commerciality involved. I take that from the use of the word commercial in the description of the more serious offences and the statutory provision for regulations to differentiate between the three tiers of offending based on quantity. The tiered approach generally and the increase in the maximum penalty for large commercial trafficking shows that Parliament intended offenders motivated by, and making substantial profits to be dealt with more severely. The notorious mischief to which the Amendment Act is addressed also suggest that that was its purpose. So to do the secondary Parliamentary materials. The illegal drug market is founded on addiction fuelled demand and profit driven supply.
Broadly it can be said that the large commercial trafficking offence was intended to apply to those offenders at the very apex of the drug distribution hierarchy and their immediate agents. The base trafficking offence was intended primarily to catch street traders and their immediate suppliers. The intermediate commercial trafficking offence was intended to apply to traders who receive drugs from the apex and who distribute them through networks to the base traffickers.
…
Sentences approaching the 10 year maximum for the base trafficking offence must be reserved for those middle order dealers, and persistent or recidivist street dealers.
[18] (2016) 126 SASR 41, 61-62 [60]-[61], [68].
The concept of what amounts to a street level trader or a mid-level dealer is necessarily imprecise. However an intermediate/mid-level dealer may commonly possesses below the amount prescribed for a commercial quantity.[19]
[19] R v Young (2016) 126 SASR 41, [8].
In this matter the two appellants should be classified as mid-level dealers, trading in a wide range of drugs with profit as the main focus of the business. I agree with the respondent’s submission that the relative sophistication of the operation, particularly the difficulties it presents with detection, are matters to be given weight when considering the question of general deterrence. Taking all those matters into account and in particular having regard to the decisions of R v Millard and R v Donald and Others, the starting point of 18 years is too high and in my view manifestly excessive.
The appellants are therefore to be resentenced by this Court.
Re-sentence
The appellants are to be sentenced against the background that the trafficking occurred over a six week period, involved small amounts of various drugs and that they in effect operated a “shopfront” on the darknet for drugs. The offending was sophisticated and difficult to detect and the motive for the offending was largely profit driven. It was part of the business model that only relatively small amounts of drugs be sourced and on sold in order to evade detection.
It is likely that the appellants profited by a little over $100,000 during the six week period. Whilst the appellants are to be sentenced only for the offences charged, if Mr Cooley had not been detected, the operation would have continued. That factor is present in many cases that come before the courts.
Mr Cooley
The appellant at the time of sentencing was 42 years of age. He was born in the United Kingdom. He travelled to Australia on holiday and it was then that he met Mr Collopy and also his future wife. Mr Cooley is married with children. He has a good work record and no prior convictions. He has been a “recreational” drug taker since his teenage years. The sentencing Judge accepted that there were no impediments to his rehabilitation. He had no psychological issues and no drug addiction issues. Character references tendered before the sentencing Judge indicated that his offending was out of character and that generally he is a hard‑working and dedicated family man.
Taking into account all those matters and using s 18A of the Criminal Law (Sentencing) Act 1988 I would start with a head sentence of 14 years imprisonment. Like the sentencing Judge I would reduce the sentence of imprisonment by 10 per cent to reflect the appellant’s pleas of guilty and a further 10 per cent to reflect his cooperation with the police[20] and four days he spent in custody upon his arrest.
[20] The basis of the extra 10 per cent was not made clear by the Judge or identified by the appellant on appeal. The respondent did not suggest on appeal that the reduction was inappropriate. The appellant appears to have been fortunate to receive the extra 10 per cent.
That leaves a final sentence of 11 years and four months imprisonment. I would fix a non-parole period of six years and four months. The head sentence and non-parole period would commence from 4 February 2016. I would not interfere with the forfeiture order made by the sentencing Judge.
Mr Collopy
Mr Collopy at the time of sentencing was nearly 40 years of age. He commenced using drugs as a teenager. He was successful in business but unfortunately his success led to a drug addiction which became out of control. He took an accidental overdose in around 2009 which led to an outpatient rehabilitation program that occurred over a nine-month period. Subsequent business investments did not prove particularly successful and this led to an escalation of his drug use.
Mr Collopy started purchasing drugs online through Silk Road in March 2013. The idea of establishing the business with Mr Cooley grew up from his experiences with Silk Road which was a site on the darknet.
I have had regard to the psychiatric report of Dr Kelly dated 18 January 2016. Doctor Kelly was of the view that Mr Collopy was a “low risk of reoffending” but would require “ongoing drug and alcohol support and monitoring to ensure that relapse of drug use does not occur”. I have also had regard to the character references tendered. Like Mr Cooley, Mr Collopy has no prior convictions.
For the drug offending, using s 18A of the Criminal Law (Sentencing) Act 1988 I would start with a single sentence of 14 years imprisonment. I would reduce that sentence by 10 per cent to allow for his plea of guilty. I would also allow six months for time he spent in custody prior to 6 June 2015. That leaves a sentence of 12 years and two months.
Whilst awaiting sentence in relation to this matter, Mr Collopy committed a number of breaches of bail. I have referred to the circumstances earlier. The sentencing Judge considered that they fell into two separate time periods, and using s 18A sentenced Mr Collopy, after discounts for pleas, to two periods of eight months imprisonment. I see no reason to interfere with the sentences in relation to those matters. They were serious breaches and separate incursions into crime. Like the sentencing Judge, I would order that each sentence be cumulative upon each other and the sentence imposed for the drug offending. That leaves total sentences of 13 years and six months imprisonment.
I accept that given the way I have structured the sentences a “last look” to ensure the total of the sentences is proportionate to the offending is appropriate. In my view no deduction should be made for “totality”.
I would fix a non-parole period of seven years and 10 months. Both the head sentence and non-parole period would commence from 5 June 2015.
In addition, I have read the remarks of Peek J and I agree with them.
Orders
Mr Cooley
The sentence imposed by the Judge is set aside. The appellant is resentenced to 11 years and four months imprisonment with a non-parole period fixed at six years and four months. The sentence and non-parole period are to run from 4 February 2016.
Mr Collopy
The sentence for the drug offending imposed by the Judge is set aside. The appellant is resentenced to 12 years and two months imprisonment with the breach of bail sentences to be served cumulatively thereon and a non-parole period fixed at seven years and 10 months. The sentence and non-parole period are to run from 5 June 2015.
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