R v Cooney; ex parte A-G

In all, Cooney's offending involved 42.9 grams of pure cocaine, 259.655 grams of pure MDMA and 109.740 grams of pure MDEA to a covert police operative for a total of $37,000.⁴ He was a user of drugs but not an addict. He claimed his profit was only $1,700. Had he not been apprehended, he expected to make a $3,000 profit on his last sale.

Cooney took part in an electronically recorded interview with police during which he made admissions. He said that his profit from selling drugs was a modest cut of the money he received and he was "spooked" by the size of the last transaction.

An analysis of his finances indicated that his identified expenditure exceeded his source income by $110,248.44 during a period which included the period for the trafficking.

The prosecutor at sentence emphasised the following matters. Cooney had pleaded guilty at the committal proceedings and co-operated with the authorities. He was a mature man with some relevant criminal history and he was a significant player in the trafficking enterprise for monetary reward. He was a successful legitimate business owner who attempted to play down his role in the drug trade. He was trafficking, not to feed his own addiction, but for purely commercial reasons. His drug trafficking fell at the high end of the trafficking chain and demonstrated that he had easy access to a variety of drugs. A sentence of nine years imprisonment was appropriate.

Mr Kimmins, who appeared for Cooney at sentence and with Ms Chekirova on this appeal, tendered a psychological report from Ms Jacqui Yoxall, who saw Cooney on 28 March 2008. She reported that Cooney had supplied the following information. He lived with his wife and two children aged seven and three and was self-employed in a marine fender manufacturing and installation business. He employed two staff. He was born in New Zealand and had a functional and happy upbringing. He moved to the Gold Coast with his parents when he was 10 years old and has lived there since. He left school at 14 to take up an apprenticeship as a coach and motor body trimmer. His life was detrimentally affected by his father's unexpected death from legionnaire's disease when he was 21 years old. He has built up his present successful marine business with the assistance of his wife. It enabled them to provide their children with a prosperous, functional and stable lifestyle. After the death of his father he began to use cannabis on a daily basis and ecstasy and alcohol on weekends. His drug use did not affect his ability to work and function during the week. He and his wife had been involved in the social use of cocaine since he was 33 years old. He became involved in trafficking because friends in "high places" asked him to obtain cocaine for them. The first time he supplied drugs to someone he did not know was when he supplied the drugs involved in the present offences to the covert police officer. He had been honest with the police about his behaviour. Since his arrest in December 2006 he and his wife had ceased all use of illicit substances, all association with users of illicit drugs and all involvement in drug trafficking. He has also worked voluntarily with Meals on Wheels, one day each week.

Ms Yoxall opined that Cooney's likelihood of re-offending was low because of the changes he had made to his life since his arrest. She considered that Cooney was aware of the gravity of his offending and was remorseful. She described him as "psychologically resilient" and as someone who lived a responsible, conservative and law-abiding existence in all aspects of his life apart from his personal drug use.

I must observe at this point that Ms Yoxall's last statement is patently inconsistent with Cooney's present offending. This went well beyond personal drug use to involvement as a customer supplying others with cocaine, MDMA and MDEA from a source well above street level for modest commercial gain.

Mr Kimmins tendered a number of references. One confirmed that Cooney had been working at Meals on Wheels, Gold Coast, for one day a week on a voluntary basis since 24 November 2006 (shortly after his arrest). Approximately 15 references attested to Cooney's sound professional and personal reputation and that his involvement in the current offending was out of character. Mr Kimmins also tendered a large number of urine drug analyses supporting the submission that Cooney was no longer a drug user.

Mr Kimmins disputed the prosecution claim that Cooney had received unexplained income of $110,000 over the period of the trafficking. The report referred to by the prosecutor concerned a much longer period of time than the period of the trafficking. A proceeds of crime application brought by the Crime and Misconduct Commission against Cooney was ultimately settled for $79,000. Mr Kimmins suggested that, despite that settlement, the judge should not infer that the $79,000 was profit from the trafficking charged in count 1.

Mr Kimmins next tendered a copy of Cooney's interview with police after his arrest. He emphasised that Cooney told police the first name of his supplier and gave details of the money he made from each of the supplies to the police officer. These totalled $1,700 with the possibility of another $3,000 on the last anticipated supply. He told police that he was not otherwise involved in the commercial sale of illegal drugs. He committed the offences only when importuned by the undercover police officer. He had no knowledge of and was surprised by the high purity of the cocaine in the first instance.

Mr Kimmins emphasised that Cooney had co-operated with police and pleaded guilty at a very early stage. He has known since November 2006 that he would be going to jail for his offending. He has sold his house and made arrangements to support his wife and children whilst in prison. Mr Kimmins submitted that an effective head sentence of between four to six years imprisonment was appropriate, significantly ameliorated by an early parole recommendation or suspension to take into account his early plea of guilty. His ultimate submission was that a sentence of five years imprisonment with parole eligibility after 15 to 18 months should be imposed.

The learned judge's sentencing remarks included the following observations. The financial analysis referred to by the prosecutor should not be regarded as being devoted solely to income Cooney received from the sale of drugs. His criminal history was "not at all significant for the purposes of this offence". Cooney was not a street dealer or a courier and was not trafficking to support his habit, although he was a drug user. There was no evidence that Cooney knew of the high level of purity of the cocaine involved in the first transaction in June 2006. There was no evidence of any commercial dealings to anyone other than the undercover police officer although there were some supplies to others on a non-commercial basis. His Honour considered that R v Barton,⁵ where a seven year sentence was imposed for trafficking, was of limited assistance. After referring to the authorities set out by Holmes JA in R v Yates,⁶ his Honour noted that a range of imprisonment from "four years, perhaps up to six years", was applicable in this case. His Honour adverted to Cooney's early plea of guilty, co-operation with the police and his family's circumstances and concluded that a sentence of five years imprisonment with parole eligibility after two years was appropriate.

In Yates the applicant pleaded guilty to trafficking in both cannabis and methylamphetamine (then a Sch 2 drug); three counts of supplying methylamphetamine; one count of supplying heroin; one count of possession of methylamphetamine; one count of possession of lysergide; one count of possession of cannabis and related summary charges. She was sentenced to an effective term of four and a half years imprisonment suspended after 15 months with an operational period of five years. As in the present case, Yates offended in response to requests from a covert police operative. Yates' mother¹⁸ was more heavily involved in the trafficking business than Yates. The police officer paid Yates $7,200 for drugs weighing 60.179 grams, of which 21.91 grams was pure methylamphetamine and $1,350 for three grams of powder which was 1.739 grams of pure heroin. She boasted to the police officer that she had sold $118,250 worth of drugs during her mother's absence. After reviewing a large number of cases, this Court determined that Yates' head sentence of four and a half years imprisonment was not excessive but varied the sentence by suspending it after nine months imprisonment because she was more at risk of harm whilst in custody than an ordinary prisoner. The cases referred to at [23] – [28] of Yates on which Mr Kimmins relies, particularly Clarke, Attard and Burge (where head sentences of five years imprisonment or less were imposed for trafficking in a Sch 1 drug) and the case of Yates itself, are, for various reasons, distinguishable from the present offending. Like Taylor and Barton, they are of limited assistance in determining the sentencing range in the present case.

I have also reviewed single judge sentences for drug trafficking in cocaine, MDMA and MDEA through the Queensland Sentencing Information Service ("QSIS").¹⁹ But I have been unable to find any case closely comparable to the combination of mitigating and exacerbating circumstances existing in the present case.

The judge sentenced Cooney on the following generous but unchallenged factual basis. He was a mature man who had previously been dealt with leniently by the courts for possession of cannabis and possession of methylamphetamine with a circumstance of aggravation. He had a successful, legitimate marine fender business which provided him, his wife and family with an affluent lifestyle. He was at the time of his offending using unlawful dangerous drugs for his personal use. He obtained these drugs from a source well up the chain from street level dealing for his friends and acquaintances who had similar drug-use habits. It was through those acquaintances that he was introduced to the covert police operative who initiated the present offending. He was apparently easily able to access significant quantities of unlawful dangerous drugs. In all, he trafficked in 42.9 grams of pure cocaine, 259.655 grams of pure MDMA and 109.740 grams of pure MDEA for $37,000²⁰ over a four and a half month period, but Cooney's profit was only $1,700 with the prospect of a further $3,000 profit had the last transaction been completed.

Cooney pleaded guilty at the committal proceeding and co-operated in significant ways with the police investigation. His arrest brought home to him the serious consequences of his offending. On the material placed before the sentencing court, it appears he will be unlikely to put at risk the welfare of his wife and children and his own liberty and prosperity by re-offending in the future.

The sentence imposed would have been well within range had the offending related solely to trafficking in the Sch 2 drugs MDMA²¹ and MDEA: see R v McAway.²² It is relevant that Cooney also trafficked in 42.9 grams of the Sch 1 drug cocaine so that the maximum penalty for count 1 was 25 years imprisonment.²³

As the primary judge noted, it is impossible to find a directly comparable set of facts when reviewing sentences for similar offences. The unusual combination of facts accepted by the sentencing judge makes it difficult to establish a clear sentencing range for Cooney's offending from other decided cases. Those to which this Court has been referred and those single judge decisions I have reviewed from QSIS show that the sentences imposed for trafficking in cocaine, MDMA and MDEA vary greatly, depending on the relevant exacerbating and mitigating factors. The unusual feature of this case is that, on the unchallenged facts found by the primary judge, although Cooney was a mature man with some relevant but minor criminal history who was able to access significant amounts of cocaine, MDMA and MDEA from a source well up from street level, his involvement in the actual trafficking business was peripheral. He was a customer who did not make a living through drug trafficking. He supplied friends and acquaintances, like the undercover police officer, for a modest profit. He funded his affluent middle class lifestyle, not from drug trafficking but from his successful marine fender business. He pleaded guilty at the very early committal stage and co-operated with the authorities. There are good reasons to think that he is unlikely to re-offend.

Undoubtedly, Cooney deserved a heavy penalty to deter him and others from engaging in such anti-social behaviour. There is nothing smart or glamorous about trafficking in these drugs which have significant human and social cost. Those who do so can expect lengthy jail terms. Barton, Taylor, Yates and the cases discussed in Yates suggest that the appropriate range in this case was a head sentence of between five and seven years imprisonment, with parole eligibility after serving two or two and a half years imprisonment to reflect Cooney's plea, co-operation with the authorities and prospects of rehabilitation.

The end result is that the appellant has failed to persuade me that the sentence, though as lenient as it could be in all the circumstances, was manifestly inadequate. It follows that I would refuse the Attorney-General's appeal against sentence.

WHITE AJA: I have read the reasons for judgment of the President and agree that the Attorney-General’s appeal against sentence should be refused for the reasons which she gives.

I agree with the President that the comparable cases to which the court was referred suggest a range of head sentence of between five and seven years. The primary Judge took a view of the evidence which was generous to the respondent because this was, on any view, a serious flouting of the prohibition on dealing in dangerous drugs. Even so, no error in his approach is discernable and the sentence imposed was not manifestly inadequate.

Although the respondent has some history of disregarding the law, albeit in a relatively minor fashion, and has admitted to the psychologist that he has used prohibited drugs for over a decade and a half there can be confidence that the sentence imposed will, in all likelihood, have a strong personal deterrent effect upon him. There is also some prospect that it will deter some of his social associates with whom he shared his predilection for this form of law breaking.

McMEEKIN J: I have read the reasons for judgment of the President and White AJA. I agree that the Attorney-General’s appeal against sentence should be refused for the reasons which they give.

[2004] QCA 435. ↩

(1996) 87 A Crim R 558; [1996] QCA 218. ↩

[2000] QCA 105. ↩

[2004] QCA 161. ↩

York v R [2005] HCA 60; (2005) 79 ALJR 1919. ↩

R v Laurence Charles Brown, Supreme Court, Qld, Byrne SJA, Indictment No 374 of 2008, 31 October 2008; R v William Sualauvi Betham, Supreme Court, Qld, Dutney J, Indictment No 666 of 2006, 28 May 2008; R v Robert John McGraw, Supreme Court, Qld, Fryberg J, Indictment Nos 472 and 735 of 2008, 17 September 2008; R v Benjamin Michael Matthews, Supreme Court, Qld, Byrne J, Indictment No 274 of 2007, 26 September 2007; R v Michael Craig Rogers, Supreme Court, Qld, McMeekin J, 12 February 2008; R v Casey Jeremy Desouza, Supreme Court, Qld, Byrne J, Indictment No 31 of 2004, 18 June 2004; R v Glen Paul Courtney, Supreme Court, Qld, Mullins J, Indictment No 482 of 2004, 27 September 2004; R v Jason Dale Edmondson, Supreme Court, Qld, Dutney J, Indictment No 67 of 2006, 23 March 2007; R v Jason Alexander Kozionas, Supreme Court, Qld, Douglas J, 1 May 2007. ↩

Not including the amount involved in the final unconcluded transaction. ↩

MDMA has been a Sch 1 drug since 1 July 2008 following the Drugs Misuse Amendment Act 2008 (Qld), Act No 4 of 2008 and Drugs Misuse Amendment Regulation (No 1) 2008 (Qld), SL No 144 of 2008. ↩

[2008] QCA 401 and the cases reviewed there at [11]-[18]. ↩

Drugs Misuse Act 1986 (Qld), s 5(a); Drugs Misuse Regulation 1987 (Qld), Sch 1. ↩