CATCHWORDS:
Sentence appeals - possession of precursor - error in failing to give discount for utilitarian value of plea - sentencing after Cameron v The Queen and before R v Sharma - discount given for plea of guilty nonetheless as much as could properly have been expected - sentences not excessive - no other sentence warranted in law - appeals dismissed.

LEGISLATION CITED:

DECISION:
(1) Grant leave to appeal in each case; (2) Appeal dismissed in each case save only for the following order; (3) Order that the applicant Patricia Grenda Cousins be released from custody on 24 July 2003.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60191/02 & 60192/02
DC 01/51/0134
GILES JA
SPERLING J
GREG JAMES J
Friday, 23 August 2002

R v John Bernard COUSINS
R v Patricia Grenda COUSINS

Judgment

GILES JA: The applicants each pleaded guilty before the Local Court at Grafton to possessing a precursor, pseudoephedrine, intended to be used in the manufacture of a prohibited drug. They were committed for sentence to the District Court at Grafton, and on 25 March 2002 were sentenced by Ducker DCJ.
The first applicant, John Bernard Cousins, was sentenced to imprisonment for a term of 3 years 2 months to date from 25 March 2002 with a non parole period of 1 year 8 months. The second applicant, Patricia Grenda Cousins, was sentenced to imprisonment for a period of 2 years 8 months to date from 25 March 2002 with a non parole period of 1 year 4 months.
The applicants applied for leave to appeal. They submitted that there was sentencing error in the regard paid to their pleas of guilty, and that apart from that the sentences are manifestly excessive.
The offence is under s 24A(1) of the Drug Misuse and Trafficking Act 1986, inserted by the Crimes Legislation Further Amendment Act 2000. Section 24A relevantly provides -
“24A(1)A person who has possession of a precursor intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence.
…
(3)In this section, precursor means a substance specified or described in the regulations as a precursor for the purposes of this section.”
The substances specified in the Drug Misuse and Trafficking Act Regulations as precursors include pseudoephedrine, and by cl 7A of the regulations an admixture, preparation, extract or other substance containing pseudoephedrine is also a precursor.
By s 33AB…

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 Cousins

Details

AGLC: R v Cousins [2002] NSWCCA 340
Case: [2002] NSWCCA 340
Decision Date: 23 August 2002

CaseChat Overview and Summary

In the matter of R v Cousins, the applicants, Patricia Grenda Cousins and another, appealed against their sentences for possession of precursor chemicals. The dispute centred on the sentencing judge’s failure to give an appropriate discount for the applicants' early guilty pleas. The appeal was heard by the NSW Court of Criminal Appeal, which was required to determine whether the sentences were excessive and whether the error in discounting for the pleas warranted a new sentence. The court was also required to decide if the applicants were entitled to be released on parole at the end of their non-parole periods.

The Court found that while there was an error in the sentencing process regarding the discount for the applicants' pleas, the sentences imposed were not manifestly excessive and were appropriate given the objective criminality of the offences. The judges noted that the discounts given for the pleas of guilty were as much as could properly have been expected. The Court held that the sentences were within the range properly available to the sentencing judge and that no other sentence was warranted in law. The Court further observed that the error in the sentencing process did not necessitate a new sentence unless a different sentence was warranted and should have been passed, as per the statutory formulation of s 6(3) of the Criminal Appeal Act 1912. Additionally, the Court identified that the sentencing judge failed to order the release of Mrs Cousins on parole at the end of her non-parole period as required by s 50 of the Crimes (Sentencing Procedure) Act.

Consequently, the appeals were dismissed, and leave to appeal was granted. However, an order was made that Patricia Grenda Cousins be released from custody on 24 July 2003. The judges unanimously agreed with the reasoning presented by Giles JA, affirming the appropriateness of the sentences imposed and the necessity of correcting the omission regarding parole eligibility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentences were within the range properly available to the sentencing judge, and the objective criminality of the offences was such that, even allowing for the subjective features in favour of the applicants, I do not think it can be said that they were manifestly excessive. On the contrary, in my opinion they were appropriate sentences.Conclusion By s 6(3) of the Criminal Appeal Act 1912, if the court is of opinion that some other sentence, whether more or less severe “is warranted in law and should have been passed”, it shall quash the sentence and pass such other sentence in substitution. Even though error on the part of the sentencing judge has been shown, the sentence will not be varied unless a different sentence is warranted and should have been passed in accordance with s 6(3), see R v Astill (No 2) (1992) 64 A Crim R 289; R v Cocking [1999] NSWCCA 311; R v Simpson (2001) NSWLR 704. In the last of these cases Spigelman CJ, with whom the other four members of the Court agreed, said (at 720-1) -“Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: ‘If it is of the opinion that error has occurred in the sentencing process’. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that ‘some other sentence … is warranted in law and should have been passed’. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to ‘quash the sentence and pass such other sentence in substitution therefor’ is not satisfied.”. Error on the part of the sentencing judge has been shown in relation to the regard paid to the pleas of guilty. But the discounts given were as much as should have been given, and I do not think that other sentences are warranted in law and should have been passed. Since error was shown, leave to appeal should be granted, but the appeal should be dismissed, subject only to the order I will now mention. It appears that the sentencing judge did not make an order directing the release of Mrs Cousins on parole at the end of the non-parole period, as required by s 50 of the Crimes (Sentencing Procedure) Act because her sentence was for less than three years. We should so order. In my opinion, in each case leave to appeal should be granted and the appeal should be dismissed, save only that the order last mentioned should be made. I propose the following orders -(1) Grant leave to appeal in each case.(2) Appeal dismissed in each case save only for the following order.(3)Order that the applicant Patricia Grenda Cousins be released from custody on 24 July 2003. SPERLING J: I agree with Giles JA. GREG JAMES J: I agree with Giles JA.**********

Ratio Decidendi

Legal Principle Established

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Citations

R v Cousins [2002] NSWCCA 340

Most Recent Citation

R v Stanley Hou [2016] ACTSC 124

Cases Citing This Decision

R v Snounou (No 3) [2024] NSWDC 636
Citation 1 (Para 73)

…Shortly after the introduction of the amending legislation, Giles JA, in R v Cousins & Anor (2002) 132 A Crim R 444; [2002] NSWCCA 340, at [34], said: “In making specific provision for the offence in question, the legislature showed by the maximum sentence that a serious view is to be taken of the commission of the…
Eaglen v Hayward [2023] ACTSC 304
Citation 2

…eps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 at 450 [33]; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [74].…
Samani v The Queen [2017] ACTCA 23
Citation 3

…s.5, and to the steps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 at 450 [33]; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [74].…
Rudolf v The Queen [2016] NSWCCA 313
Citation 4 (Para 48)

…s.5, and to the steps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 at 450 [33]; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [74].…
R v Stanley Hou [2016] ACTSC 124
Citation 5

…have been manufactured by the offender although the plea of guilty to counts 5 and 6 include an admission of the intended use of the precursors. See R v Cousins (2002) 132 A Crim R 444 at 450 and this is relevant to assessing criminality.…
Grover v The Queen; Grover v The Queen [2014] NSWCCA 315
Citation 6 (Para 1)

…jective seriousness of the applicants' offending as suppliers of pseudoephedrine as a prohibited drug, in accordance with the approach in R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 (a case which was concerned with the possession of pseudoephedrine as a precursor contrary to s 24A(1)(a) of the Drug Misuse and Tr…

See all citing cases →

Cases Cited

Tynan & Ors. v Newcastle City Council [2002] NSWCA 142
Citation 1 (Para 15)

…In R v Sharma [2002] NSWCA 142 this Court considered whether Cameron v The Queen had overturned R v Thomson so far as that case permitted a discount for the objective utilitarian value of a plea of guilty. It was accepted (at [37]) that, although the High Court had re-formulated the approach to one of subjective pr…
Cameron v the Queen [2002] HCA 6
Citation 2 (Para 12)

…Cameron’s Case to which the sentencing judge referred is Cameron v The Queen [2002] HCA 6; 76 ALJR 382.…
R v Simpson [2001] NSWCCA 534
Citation 3 (Para 7)

…and should have been passed in accordance with s 6(3), see R v Astill (No 2) (1992) 64 A Crim R 289; R v Cocking [1999] NSWCCA 311 ; R v Simpson (2001) NSWLR 704. In the last of these cases Spigelman CJ, with whom the other four members of the Court agreed, said (at 720-1) - “Sentencing appeals in this Court frequ…
R v Thomson; R v Houlton [2000] NSWCCA 383
Citation 4 (Para 13)

…Prior to Cameron v The Queen this Court had held in R v Thomson (2000) 49 NSWLR 383 that, apart from any significance as evidence of contrition, weight could be given to the objective utilitarian value of a plea of guilty, and had indicated a general range of ten to twenty five per cent for the appropriate discount.…
R v Cocking [1999] NSWCCA 311
Citation 5 (Para 7)

…different sentence is warranted and should have been passed in accordance with s 6(3), see R v Astill (No 2) (1992) 64 A Crim R 289; R v Cocking [1999] NSWCCA 311 ; R v Simpson (2001) NSWLR 704. In the last of these cases Spigelman CJ, with whom the other four members of the Court agreed, said (at 720-1) - “Sentenc…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 15)
Crimes Legislation Further Amendment Act 2000 (NSW)
1 mention (from Para 4)
Criminal Appeal Act 1912 (NSW)
1 mention (from Para 7)