R v Cousins & Anor

Court of Criminal Appeal (NSW)|2002-07-17|Before: Giles JA, Sperling J, Greg James J, James J

CITATION : R v Cousins & Anor [2002] NSWCCA 340 revised - 11/09/2002 FILE NUMBER(S) : CCA 60191 & 60192/02 HEARING DATE(S) : 17 July 2002 JUDGMENT DATE : 23 August 2002

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/51/0134 LOWER COURT JUDICIAL Ducker DCJ OFFICER :

COUNSEL : P Hamill - Applicants E A Wilkins - Respondents SOLICITORS : Price & Roobottom, Southport, Queensland - Applicants S E O'Connor - Respondents 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. Cameron v The Queen [2002] HCA 6; 76 ALJR 382; R v Astill (No2) (1992) 64 A Crim R 289; CASES CITED: R v Cocking [1999] NSWCCA 311; R v Sharma [2002] NSWCA 142; R v Thompson (2000) 49 NSWLR 383. 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.

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 1 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. 2 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. 3 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. 4 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." 5 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. 6 By s 33AB of the Drug Misuse and Trafficking Act the maximum penalty for conviction for the offence on indictment is ten years imprisonment or a fine of $200,000, or both. 7 Pseudoephedrine can be used in the manufacture of amphetamines. Amongst other preparations, it is a component of the commonly available pharmaceutical Sudafed. In the second reading speech for the Crimes Legislation Further Amendment Bill the Minister said that the stimulus for the offence was Government concern at the widespread use of legitimate precursor chemicals, such as pseudoephedrine which was commonly found in Sudafed, in the manufacture of amphetamines or street drugs such as speed. He said, "The criminals who manufacture these drugs would go on milk runs to buy up cold and flu tablets from a number of suppliers until they had enough to manufacture speed and other drugs".

The pleas of guilty 8 The applicants pleaded guilty at an early time. The sentencing judge said - "I take into account also the plea of guilty in each instance. The High Court has recently held that it is discriminatory for a reward to be given to an offender merely for pleading guilty as this offends the rights of an accused person who pleads not guilty. For a great many years, leniency was given, quite apart from any question of remorse, for saving the State the cost of trying them. This pragmatic consideration has apparently offended the pearly white sensitivities of a majority of the High Court which henceforth required this practice to cease. It is however, permissible to recognise his attitude of willingness to further the interests of justice ( Cameron's Case ). Contrition, upon careful investigation, not invariably but very frequently, proves to be merely self-concern. However a person who does plead guilty, does forfeit any chance they had of escaping conviction and that is a matter which in my view should be recognised and I propose to give a 20 per cent discount from what would otherwise have been their sentence, as regards each of them." 9 When pronouncing Mr Cousins' sentence his Honour said that he had "reduced the sentence which otherwise would have been imposed, by reason of the subjective matters to which I have referred, from forty-eight months to thirty-eight months, which is a shade over 20 per cent". 20 per cent of 48 months is 38.4 months. When pronouncing Mrs Cousins' sentence his Honour said, "I likewise reduce by eight months the sentence which would otherwise have been imposed and thus reduce it from forty months to thirty-two months". 20 per cent of 40 months is precisely 32 months. 10 The applicants' first submission was that it was not clear that the reductions when pronouncing the sentences were the 20 per cent discount earlier mentioned, and that his Honour had failed to give any discount for the pleas of guilty. This was founded on the words "by reason of the subjective matters to which I have referred" spoken in relation to Mr Cousins, it being suggested that his Honour was there referring to matters such as the applicants' ages, lack of previous convictions and close family life. If so, it was said, there were no discounts by reason of the pleas of guilty. 11 I am unable to agree. Reading the reasons as a whole, I have no doubt that by subjective matters his Honour meant considerations relating to the pleas of guilty apart from the pragmatic saving of the cost of a trial. The figure of 20 per cent was repeated, and it is inconceivable that within two pages his Honour would forget to do what he said he proposed to do. 12 Cameron's Case to which the sentencing judge referred is Cameron v The Queen [2002] HCA 6; 76 ALJR 382. 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. 14 In Cameron v The Queen a majority of the High Court said (at [11] - [14]) that remorse was not the only subjective matter revealed by a plea of guilty, that the plea might also indicate acceptance of responsibility and willingness to facilitate the course of justice, and that the rationale for a discount so far as it depended on factors other than remorse and acceptance of responsibility should be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea had saved the community the expense of a contested hearing. 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 preparedness to facilitate the administration of justice, the size of the discount identified as appropriate in R v Thomson was determined by pragmatic considerations and that if those considerations could not be taken into account the size of the discount would no longer be appropriate. It was held that Cameron v The Queen had not overturned R v Thomson in its application to State offences in New South Wales, because s 22 of the Crimes (Sentencing Procedure) Act 1999 modified the common law and underpinned that case. 16 The applicants were sentenced before R v Sharma was decided. The applicant's second submission was that, in putting aside the utilitarian value of a plea of guilty in the belief (erroneous, as was later established) that Cameron v The Queen so required, the sentencing judge had erred in depriving the applicants of discounts of a greater size than the 20 per cent discounts. It was submitted that the applicants were entitled to the full 25 per cent discount in the R v Thomson range. This can conveniently be considered together with the applicant's third submission, that the sentencing judge failed to make any finding as to the contrition of the applicants. 17 The only submissions to the sentencing judge by counsel for the applicants relevant to either the pleas of guilty or contrition were in the passage - "You might think that their plea of guilty, if nothing else, and there may not be much else in the depositions as such, is some genuine recognition by them of the wrong doing and presumably the consequences as they now know them. HIS HONOUR: On the other hand, it could be that the realisation after their early attempts to escape responsibility, that they've been caught red-handed. JOHNSON: Certainly there's some strength in the Crown case at the time of their arrest, that can't be disputed but nevertheless, the fact of the matter is that they did enter pleas … ". 18 The sentencing judge then referred to Cameron v The Queen and the negation in that case of the utilitarian value of a plea. No submission was made that the utilitarian value of the pleas should be taken into account. 19 Apart from the pleas of guilty, there was no evidence of contrition. In my view, it is apparent from what his Honour said in the passage earlier set out that he did not regard the pleas as evidence of contrition, since he gave weight to the pleas only by recognition that by pleading the applicants had forfeited any chance they had of escaping conviction. A reading of the ERISP interviews of the applicants and reference to the pre-sentence report fully justify the view that no contrition was shown, indeed it is plain enough that the applicants were not frank as to the circumstances of their offending. 20 Nonetheless there was sentencing error in putting aside the utilitarian value of a plea of guilty, albeit error from which counsel did not attempt to save his Honour. The Crown acknowledged the error, but submitted that discounts greater than 20 per cent would not have been appropriate on correct regard to the pleas of guilty. 21 It is not easy to see what chance the applicants had of escaping conviction, apparently the sentencing judge's re-statement of willingness to further the interests of justice. In the absence of contrition, the discount given by the sentencing judge was extremely generous. Although in R v Thomson it was said that the top of the range would be expected to be restricted to pleas at the earliest possible opportunity, that does not mean that an early plea automatically brings a discount at the top of the range. Higher or lower discounts may be appropriate, depending amongst other things on the length and complexity of the trial the cost of which has been saved. The applicants submitted that there was nothing to deprive them of the 25 per cent at the top of the range. I do not think they were entitled to it. In my opinion the discount of 20 per cent was as much as the applicants could properly have expected if his Honour had followed the approach and range of discounts in R v Thomson for the utilitarian value of the pleas.

Manifest excess 22 The applicants submitted that the sentencing judge wrongly assessed the extent of the objective criminality in their admitted conduct. They said that his Honour had no regard to the quantity of active precursor possessed, and that there was no evidence that the applicants were other than recruits at a preliminary stage in the manufacture of a prohibited drug with no interest in or control over that process. They submitted that in imposing a term of imprisonment at all the sentencing judge failed to give adequate weight to their ages, the absence of any relevant prior convictions, their status as recipients of social security pensions and their apparently modest means. They said that when coupled with the pleas of guilty, and when the objective gravity of the offences was considered and balanced against the strong subjective features of the case of each of the applicants, a sentence of imprisonment could not properly be said to be the only appropriate penalty, or that if it was the only appropriate penalty the terms of imprisonment were manifestly excessive having regard to the statutory maximum of ten years. They submitted that the excess in the sentences was supported by regard to sentencing statistics. 23 The applicants were in possession of 39 packets of Sudafed tablets or similar preparations. They possessed them pursuant to a sustained course of criminal conduct in obtaining the preparations knowing that they were to be used for the manufacture of amphetamines, and they did so for financial reward to themselves. They fell squarely within the concern intended to be met by the introduction of the offence. 24 Mr Cousins said that he was given $700 to buy Sudafed by a man or men on the Gold Coast, who also gave him a computer print-out of where chemists were located as one drove to Melbourne. He said that he was told to give the tablets to the men when returning to Queensland. Mrs Cousins said that she got the computer print-out from her son's computer, and that they were going to sell the tablets to a man in Queensland. The applicants drove south from Queensland, where they lived, buying Sudafed or similar preparations from chemists at nearly every town. Legislation restricted sales to one packet, so there must have been purchases from at least 19 separate chemists. They took the computer print-out of where chemists were located on a route to Melbourne. They had discussed between them that they could make money out of what they did. They were apprehended at Grafton, only part of the way on their journey. 25 Both applicants declined to identify the man or men with whom they had dealt. They were in possession of large sums of money, very much more than $700. The sentencing judge was entitled to be satisfied, as he said he was, that both applicants were being less than truthful in their accounts of how they came to have the money. They were not sentenced for that. But they had with them, in cash, the wherewithal for an extended buying trip. 26 The sentencing judge accepted, despite some doubt, that the applicants were recruited by others or at least another. He was at pains to sentence them for no more than the offences to which they pleaded guilty. But these were not innocents. His Honour correctly said - "I should say at the forefront that, in my opinion, this cannot be regarded as an isolated offence which was out of character for the two offenders, as at the date of their arrest, there being unchallenged evidence in the prosecution brief which establishes that they had been involved in recruiting a relative to obtain Sudafed and forward it them upon the stated basis that it would be forwarded on by them to the person with whom they were dealing. That being said, it must nonetheless be borne firmly in mind that the sentence to be passed here must relate only to the charge brought against each of them." 27 What the applicants submitted was a wrong assessment of the objective criminality in their conduct was in the paragraph - "The quantity of the drug in this case, seems to place them slightly below what I would expect to be the middle range. It must be noted however in terms of the criminality involved that their offences had not been discounted because of any second thoughts or change of attitude, but simply because they were caught. They were travelling to Melbourne. They had a list of pharmacies all the way down. It may be that that information came from somebody else, but they had it in their possession and they were travelling to Victoria, which does create suspicion that there would have been many other stops on the way at various chemist shops. However, they must be dealt with in the final analysis for what they did not what they might have done if not arrested." 28 In my opinion his Honour was not placing the quantity of pseudoephedrine in a graded scale of quantities. The offence under s 24A(1) did not depend on less than a commercial quantity, a commercial quantity and so on as do other offences. In my view his Honour was addressing a scale of criminality, by regard to the maximum sentence of ten years imprisonment, and as part of that paid regard to the quantity of pseudoephedrine. 29 Although he did not specifically refer to it, there can be no doubt that his Honour had in mind the evidence that the packets had a total of 1,226 tablets with a combined amount of 71.28 grams of pseudoephedrine, enough to produce a theoretical 64.15 grams and a practical 38.4 grams of methylamphetamine and enough for 769 street doses of the amphetamine sold as speed when cut to 5 per cent purity with a total street value in excess of $75,000. The offence was possession of the precursor intended for use in the manufacture of a prohibited drug, and the intended use was admitted by the applicants by their pleas. It was therefore relevant, when assessing criminality, to have regard not only to the quantity of pseudoephedrine in the applicants' possession, but also to the amphetamine which would come from the intended use and to the street doses and value of the end product if put into the community. 30 I am unable to accept that, having regard to the quantity of the precursor and these matters, and to the circumstances in which the applicants came to possess the preparations containing the pseudoephedrine, the objective criminality was small. In my opinion, it was significant. To repeat, the applicants engaged in a sustained course of criminal conduct, albeit one interrupted by their apprehension at Grafton. I do not think the sentencing judge erred in placing the criminality towards the middle of a scale of criminality for the particular offence. 31 Mr Cousins was aged 58 and Mrs Cousins was aged 51. Neither had a relevant prior conviction. Both were in receipt of social security pensions, although the sums of money in their possession and evidence of other matters belies the submission that they were of modest means. They had three children, with whom they formed a close family. Both had suffered from ill health, and Mr Cousins had a heart condition with a guarded prognosis. There were subjective features in their favour. In addition, both applicants pleaded guilty at an early time and the sentencing judge gave the 20 per cent discount earlier considered. 32 The sentencing judge found special circumstances in the applicants' ages, their first sentences of imprisonment, their chances of rehabilitation well above average, and their states of health. He said that he regarded Mr Cousins "as having been more deeply involved, not a great deal" than Mrs Cousins. 33 In the applicants' submissions it was noted that the sentencing judge had not referred to s 5 of the Crimes (Sentencing Procedure) Act, by which a judge must not sentence an offender to imprisonment unless satisfied having considered all possible alternatives that no penalty other than imprisonment is appropriate. Absence of express reference does not mean sentencing error, and from the transcript of the submissions made to his Honour it is plain that he turned his mind to whether sentences less than sentences of imprisonment were appropriate. The applicants' then counsel acknowledged that sentences of imprisonment were "open". In this application the applicants submitted that sentences of imprisonment had not been open, and that his Honour erred in taking up that alternative. I am unable to agree. In my opinion, in the circumstances I have outlined sentences of imprisonment were the only proper sentencing alternative. 34 Before the 20 per cent discounts the terms of imprisonment were 4 years for Mr Cousins and 3 years 8 months for Mrs Cousins. 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 commission of the offence. The offence being relatively new, no sentencing statistics are available. 35 The applicants submitted that guidance could be found in sentences imposed for the offence of supply of less than a commercial quantity of amphetamines (Drug Misuse and Trafficking Act, s 25(1)). The maximum sentence for conviction for the offence on indictment is imprisonment for 15 years. The all offenders statistics show approximately 40 per cent sentences of imprisonment and sentences up to 4 years. The statistics for one count with no prior convictions and a plea of guilty show approximately 20 per cent sentences of imprisonment and sentences up to 3 years. The applicants correctly recognised the limitations of this guidance. In my view the statistics are of little value. The quantity of amphetamines less than a commercial quantity is from 5 grams to 250 grams. Where the sentences fell within this range is not known. In the present case there is, to repeat it again, the sustained course of criminal conduct, distinct from many cases of supply of less than a commercial quantity of amphetamines. And the offence is very different, in that for s 24A(1) there is no graded scale of quantities (although quantity is relevant), and the element of intended use in the manufacture of a prohibited drug brings particular regard to what would come from the intended use and the ultimate release of the prohibited drug into the community. 36 The Court raised whether more useful guidance could be found in sentences imposed for the offence of knowingly taking part in the manufacture of less than a commercial quantity of amphetamines (Drug Misuse and Trafficking Act, s 24(1)). Possession of a precursor intended to be used in the manufacture of amphetamines is arguably closer to that offence than supply of amphetamines. The maximum sentence for conviction for the offence on indictment is also imprisonment for 15 years. The number of cases the subject of sentencing statistics is much less than for the offence of supply of less than a commercial quantity of amphetamines. For all offenders over 60 per cent of convictions brought sentences of imprisonment, the sentences ranging up to 4 years. The statistics for no prior convictions and a plea of guilty show 60 per cent sentences of imprisonment, being only three cases with sentences of 2 years, 3 years and 4 years. There can be minor involvement in the manufacture of amphetamines or major involvement, whereas the applicants' involvement in their offences was primary. The guidance here is particularly affected by the limited number of cases and the variety of facts which could be involved. I do not think these statistics assist the applicants. Again, in my view, the offence to which the applicants pleaded guilty is different in kind in that it does not depend on a graded scale of quantities. 37 Other statistics were cited which do not advance matters. 38 The applicants referred to a number of cases involving manufacture or trafficking in drugs, submitting that the criminality shown was generally greater than theirs and the sentences were less or no greater than theirs. The Crown referred to further cases. As might be expected, the facts vary greatly. I have considered the cases carefully, but it is necessary to come to the facts of the present case. I am not persuaded that the cases indicate that the sentences imposed on the applicants were outside the range properly available to the sentencing judge. 39 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 40 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.". 41 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. 42 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. 43 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. 44 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. 45 SPERLING J: I agree with Giles JA. 46 GREG JAMES J: I agree with Giles JA. **********

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