Regina v Jeffrey Alister Cowper

[2007] NSWDC 353

CITATION:	Regina v Jeffrey Alister Cowper [2007] NSWDC 353
JUDGMENT DATE:	6 August 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Appeal allowed. Sentence varied. Imprisonment for 2 years with a non-parole period of 12 months. Release to supervised parole.
CATCHWORDS:	Criminal law - Sentence appeal - Drug offence - Possess precursor intended for the manufacture of a prohibited drug - Maximum penalty imposed by Magistrate - Not the worst case of this offence - On conditional liberty at time of the offence - Plea of guilty - Need for supervision and rehabilitation amount to special circumstances
LEGISLATION CITED:	s20(2)(b) Crimes (Appeal and Review) Act 2001 ss 24A, 33AB Drug Misuse and Trafficking Act 1985
PARTIES:	Regina Jeffrey Alister Cowper
FILE NUMBER(S):	07/32/0365
SOLICITORS:	Ms Harris for the NSW DPP Mr Couch for the appellant

JUDGMENT

1. Mr Cowper was convicted of a drug offence. The offence was contrary to s 24A of the Drug Misuse and Trafficking Act 1985 . It is described as possessing a precursor intended for use in the manufacturing or production of a prohibited drug. He pleaded guilty to that offence before a magistrate.

2. As a result of s 33AB the offence carries a maximum of ten years imprisonment or a fine of 2,000 penalty units or both. Section 31 of the same Act provides by subs 3 that if it is dealt with summarily, as it was in this case, the maximum is 100 penalty units or imprisonment for two years or both.

3. The learned magistrate in this case sentenced Mr Cowper to imprisonment for two years and specified a non-parole period of eighteen months.

4. Mr Couch, who appears for Mr Cowper, submits that the magistrate has imposed the maximum sentence. That submission must be right in terms of s 31 in that it is the jurisdictional maximum which could be imposed by the magistrate. However, that is not the same as saying that the magistrate regarded it as a worst case offence. My understanding of the law is that where a magistrate is constrained by a jurisdictional maximum of two years in sentencing for an offence which, when indictable, carries a greater maximum, a sentence of two years is not reserved for offences which the magistrate regards as being in the worst case category.

5. Briefly, the facts of the offences, as admitted by Mr Cowper, are that on 3 April 2007 he attended the Priceline Pharmacy at Forster shopping village and purchased a twelve pack of tablets, being Demazin. A short time later at another pharmacy he bought a six pack of Demazin. He made no admissions to the police. When he was arrested the car was found to contain in the glove box twelve large Demazin tablets and thirty-six small generic type cold and flu tablets.

6. Mr Couch’s case is that his client is aged forty-six and became involved with drugs when he moved to Queensland. That submission is supported by his client’s criminal record that indicates a regular series of convictions since 1999 for possessing dangerous drugs in Queensland. Mr Couch says that his client buys the drugs only for his own use and he says that his client, having been sentenced by the magistrate to a minimum term of eighteen months, has now spent some four of those months in prison. As a result, he has become drug free. Mr Couch points out that his client’s drug-taking activity occurs when he faces crises in his life. One was the break-up of his marriage and the other apparently was the most tragic event of losing his three-year-old son to drowning. But Mr Couch points out that his client has had to date no period of supervision. This appears to be borne out by the criminal record. He is in a new relationship with a woman who is drug free.

7. Mr Couch’s point is that a sentence of two years which carries a non-parole period of twelve months would afford his client a greater opportunity to be subject to supervision and thereby assist him in recovering from his drug addiction.

8. Ms Harris for the prosecution agrees that it is a relatively small quantity, but nevertheless constitutes a serious offence. She very fairly acknowledges that, given the offender’s age of forty-six and a lack of supervision to date, the proposal suggested by Mr Couch could be of some assistance and is within range. She recommends that the authorities in Queensland be contacted regarding this case because the most serious offence on Mr Cowper’s record is an offence of producing dangerous drugs in respect of which he was sentenced by the Supreme Court of Queensland in Brisbane on 30 August 2005 to a suspended sentence of two years and six months. He had already been in custody for one year when he was sentenced, so that the Supreme Court of Queensland directed that the one year’s custody be taken into account and that the balance be suspended.

9. Two observations could be made about that sentence. One is that it is relevant to my sentencing exercise that Mr Cowper committed this fresh offence in New South Wales whilst he was subject to a suspended sentence. What consequences that may have in Queensland is not a matter for me, but it is relevant for me so far as taking into account the likelihood of his re-offending and the fact that he has breached conditional liberty allowed to him by another court.

10. The second observation is that I agree with Ms Harris that the circumstances of this offence should be drawn to the attention of the Supreme Court of Queensland.

11. I propose to allow Mr Cowper’s appeal. I think Mr Couch has made good his argument. I accept that Mr Cowper is an offender who has regularly been convicted for possession of drugs but, more importantly, that those convictions related to his own habit. It appears to me from the evidence that he has not had an opportunity for supervision within the community yet. Given that he is currently drug free as a result of his time in prison, it seems to me that now is a good time to afford him some opportunity for supervision. That, in my opinion, is likely to assist his rehabilitation, particularly given the circumstances that he is in a fresh relationship with a person who is drug free.

12. Nevertheless, on the other hand, I regard this as a serious offence and the fact that it was committed whilst on conditional liberty is a significantly aggravating factor. For that reason, I do not propose to alter the maximum sentence of two years, but I regard the circumstances which I have referred to concerning an opportunity for rehabilitation as amounting to special circumstances, and I propose to alter the ratio between the non-parole period and the balance of the term.

13. Accordingly, the orders that I make are as follows. In accordance with s 20(2)(b) of the Crimes Appeal and Review Act 2001 , I vary the sentence imposed by the magistrate. I vary that sentence by setting a non-parole period of twelve months. The balance of the term is therefore also twelve months.

14. I decide that there are special circumstances for the balance of the term of the sentence exceeding one-third of the non-parole period. They are the circumstances referred to in my reasons for upholding the appeal.

15. The day on which the sentence commenced was 3 April 2007 and the earliest day upon which it appears that Mr Cowper will become entitled to be released from custody will therefore be 2 April 2008. I direct that Mr Cowper be released on parole on 2 April 2008.

16. I impose a condition of the parole that Mr Cowper be subject to supervision as prescribed by the Regulations under the Crimes (Administration of Sentences) Act 1999 for the whole of the parole period, and that particular attention be given to his drug addiction problem.

17. I recommend that a transcript of my reasons on this appeal, together with my orders, be forwarded to the Supreme Court of Queensland Registry, drawing its attention to the orders made by that court on 30 August 2005.

18. Exhibit A should stay with the court papers.

oOo