R v Mark Anthony Cooney

LOWER COURT District Court JURISDICTION : LOWER COURT 02/61/0205 FILE NUMBER(S) : LOWER COURT Woods DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60138/04

SPIGELMAN CJ HIDDEN J BUDDIN J

FRIDAY 30 JULY 2004 REGINA v MARK ANTHONY COONEY Judgment 1 SPIGELMAN CJ: I agree with Buddin J. 2 HIDDEN J: I agree with Buddin J. 3 BUDDIN J: The appellant pleaded guilty to an indictment which contained two counts. He had originally pleaded in the Local Court but was arraigned in the District Court in order to overcome any technical deficiencies in the committal document. The first count alleged that between 13 June and 16 June 2002 at Bourke he did on four separate occasions during a period of 30 consecutive days supply a prohibited drug for financial reward namely on 14 June did supply methylamphetamine and, on three occasions on 15 June, did supply methylamphetamine. The second count alleged that on 4 July 2002 at Cobar he did supply a prohibited drug, namely methylamphetamine. 4 The first offence attracts a maximum penalty, pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985, of 20 years' imprisonment and/or a fine of $385,000, whilst the second offence attracts, pursuant to s 25(1) of that Act, a maximum penalty of 15 years' imprisonment and/or a fine of $220,000. 5 In respect of the first offence, the appellant was sentenced to 3 years' imprisonment with a non-parole period of 2 years 3 months. On Count 2, the appellant was sentenced to a wholly concurrent sentence of 2 years' imprisonment with a non-parole period of 18 months. All sentences were ordered to commence on 2 October 2003. The effect is that the head sentence is due to expire on 1 October 2006 and the non-parole period is due to expire on 31 December 2005. In imposing sentence upon Count 2, the sentencing judge took into account four matters on a Form 1 document, being cultivate prohibited plant, possess a prohibited drug (namely a small quantity of cannabis leaf and seeds), receiving and common assault. 6 The matter was originally to proceed as an application for leave to appeal against the severity of the sentences imposed. However, after written submissions had been filed on behalf of the appellant, the decision of this Court in R v Jackson [2004] NSW CCA 110 was handed down. As it happens, Mr Jackson was a co-offender of the appellant. In that case, Sully J (with whom Wood CJ at CL and Hislop J agreed), said: 28 At the hearing of the present appeal there was a deal of discussion of the question whether it is an essential element of a section 25A(1) offence that the person who carried out the three or more separate supplies of a prohibited drug other than cannabis, actually received himself the relevant financial or material reward. The appellant submitted that that question should be answered affirmatively, a proposition entailing that the section should be construed as though the words "financial or material reward" read "financial or material reward to that person". … 29 I would myself be content to decide the point upon the basis that there is no ambiguity about the wording of the section; and that the ordinary and grammatical reading of the terms of the section carry by necessary implication the proposition that it is the person who actually has done the relevant supplying who must be shown to have gained something out of it by way of financial or material reward. … 33 It seems to me that a fair reading of that material suggests clearly that at every stage of the legislative consideration of the proposed new section the intended target was not commercial drug dealing as an abstract generality, but rather the individual who was making a profit out of indulging, to the prescribed statutory extent, in specifically identified and demonstrated instances of commercial drug supply. It seems to me that if that view is correct, then it must follow that the reference in section 25A to "financial or material reward" is to be understood as referring to a financial or material reward to the person who is shown to have carried out the three or more supplies as defined in the section. … 7 The Court allowed the appeal as the Crown was unable to establish the offence. In respect of two of the four transactions upon which it relied, there was no evidence that either or both of them involved any financial or material reward to Jackson. In respect of a further transaction, there was simply no evidence implicating him in the supply. 8 The appellant accepts that the circumstances in Jackson do not directly apply to his case because the evidence in his case is of a slightly different character. What is contended however, in short, is that had the state of the law as determined in Jackson been known to him and his advisers at the time when he entered his plea in relation to count 1, he would have taken a different course. Accordingly, he wishes to now go behind his plea and appeal against his conviction. 9 There are four affidavits upon which the appellant relies in support of his appeal against conviction. No objection was raised by the Crown in respect of any of that material and nor were any of the deponents required for cross-examination. The appellant swore that what he had told the police was the truth. He also swore that he had been given advice by a duty solicitor in the Local Court to plead guilty as the prosecution was able to prove its case. The appellant asserts that had he been aware of the decision in Jackson, then he would have pleaded not guilty in the light of advice which he has subsequently obtained which is to the effect that his conduct may not have rendered him liable for conviction of the offence in question. 10 The three solicitors who acted on his behalf at various times swore that had they been aware of the decision in Jackson, they would have furnished advice to the appellant that it was open to him to enter a plea of not guilty to the charge. 11 The Crown case which was presented against the appellant in the District Court consisted of an agreed statement of facts and a brief containing the statements of various witnesses together with an ERISP which had been conducted by police with the appellant. 12 The statement of facts which was tendered without objection is in the following terms: On the 14th of June 2002, an undercover Police officer travelled with the defendant to the township of Bourke. The undercover police officer drove the defendant to a number of dwellings in the Bourke area where the defendant purchased amounts of amphetamines and also cannabis. About 8pm that date the defendant supplied the undercover operative with a clear resealable bag containing white powder. The undercover operative paid the defendant $100. About 8.30 am on the 15th of June 2002, the undercover operative attended the defendant's address at 6 Rankin Street, Cobar. The undercover operative paid the defendant $100 and received a clear resealable bag containing white powder. About 5.30pm on the 15th of June 2002, the undercover operative again travelled with the defendant to the township of Bourke. The undercover operative drove the defendant to 1/42 Short Street, Bourke where the defendant again sourced a quantity of amphetamine. A short time later the undercover operative drove about 4 km out of Bourke on the Cobar Road. The undercover operative then purchased a quantity of white powder in a re-sealable bag. The undercover operative paid the defendant the sum of $100. About 10.20pm on the 15th of June 2002 the defendant contacted the undercover operative by phone. The undercover operative then went to 6 Rankin Street, Cobar. He then purchased a quantity of brown crystallised powder in a small re-sealable bag. The undercover operative paid the defendant the sum of $50. 13 It is common ground that the Crown case depended upon the evidence of an undercover operative who was provided with the pseudonym "Mick". Various statements which he had made were in evidence. None of the alleged conversations between "Mick" and the appellant were recorded. The appellant in his ERISP gave his version of the circumstances which surrounded the four transactions which the Crown relied upon in support of the charge. There was a measure of divergence between what he had to say about those transactions and the version given by "Mick". 14 It is unnecessary for present purposes to recount the details of "Mick's" evidence which simply elaborates upon what is contained in the statement of facts. That is because the appellant concedes that the Crown is able to establish its case by relying upon the evidence of "Mick". 15 That being so the appellant acknowledges that his circumstances are distinguishable from those which prevailed in Jackson because, as I have said, the Crown was unable on its own case in Jackson, to establish the offence. His argument is that the appellant would not have abandoned the version of events which he advanced in his ERISP, had he and his advisers known of the decision in Jackson and of its significance to his case. In other words, he contends that he was under a misapprehension at the time when he entered his plea of guilty as to what was required in order for the Crown to be able to establish the elements of the offence. 16 It is necessary in those circumstances to consider the version of events which the appellant put forward in his ERISP. It is unnecessary however to refer to the last in time of the four transactions because the appellant concedes, even upon his version of events, that his conduct relevantly comes within the scope of s 25A even after the decision in Jackson.

17 So far as the first transaction is concerned, the relevant parts of the ERISP are set out below: Q Now mate, that, that evening I'm informed that you gave this person Mick, that he handed you a $100.00 and that you gave him a, a, a, a deal of amphetamines, is that right? A Yeah, he give me $100.00 beforehand then I give, give him the deal straight from Jackson.

Q Right, And that was one of the first ones was it, from Jackson's joint? A Yeah, well, put it this way he give me the 100, I didn't give it to him 'cause Jackson's had 'em both on the stove and I grabbed mine and I used it straight away and tasted it and it was all right and I said, Use it, like, that was the first time I went with Mick, I used it there and then mixed in, in a kitchen and then Mick picked it up, oh, Scott and Mick both picked it up and Mick said, I'll buy another one for 100. All right. Q And then, so, that one there wasn't actually mine til, at any stage because it come from Jackson. CONSTABLE CURRAN Q I'm, I'm told that you actually left the house and it was in your possession then, and then later on - - - A No, 'cause - - - Q - - - later on you …. A No, what happened mate, Mick picked it up and he put it in his pocket and he said, I'll have that one. 18 It may be accepted that it is not entirely clear what the appellant was intending to convey by his answers. It is possible that he was saying that there was in fact no supply at all by him to "Mick" because the drug was supplied by Jackson to "Mick" directly and that he was merely present at the time. That is, although a drug transaction took place and money changed hands he was not a party to it and did not receive the money. Alternatively it may be that what he was suggesting (particularly in the light of other answers which he gave) was that he was a mere conduit between Jackson and "Mick" but that in any event he received no financial reward. Either way, it is apparent that the decision in Jackson may well have affected the course which the appellant would have adopted had it been available to him it at the time when he entered his plea. I accept that it is quite conceivable that a competent lawyer advising the appellant without the benefit of the decision in Jackson, could properly have taken the view that the conduct to which the appellant admitted, may have attracted the operation of the extended definition of "supply" in the Act and have furnished advice to that effect. 19 It is convenient to next deal with the third transaction. The appellant's version of events appears in the following extract from the ERISP: Q Did you see Glen Jackson? A Yeah. Q What happened then? A Went for a walk and picked up probably another four $50.00 deals and $100.00 deal. …. Q O.K. And, and what happened then, mate, once you, once you, then, how much money did you part with on that occasion? A I parted with, I came home with $100.00, went over there with 300. Q All right. A And Mick give me 100, so it was over $400.00. ….. Q O.K. Mate, I'm told Mick pulled over a few K's out the road and, and asked you about what you bought and that you, you showed him a number of bags that you, that you'd bought, resealable bags. A There was three, four bags. Q Yeah. And, and what happened then? A He never pulled up, we were just driving along and I showed him driving along. We just drove back into Cobar. I handed over the one that he'd give me the money to give to Glen to get him one. 20 The appellant there appears to be contending once again that he was a mere conduit who was given the money by "Mick" to go and purchase the drugs and that he proceeded to do so before handing the drugs over to "Mick". The Crown conceded that the scenario suggested by the appellant would give rise to the considerations referred to in Jackson. 21 The consequence of the view at which I have arrived is that, at least upon the appellant's version, two of the four transactions could in the light of Jackson, be the subject of legitimate challenge. That in turn would provide a basis upon which the Crown case could be put in issue because it may not be able in those circumstances to establish that there were a total of three transactions of the requisite kind performed within the thirty day period. 22 The Crown contended that there were a variety of reasons as to why the appellant's version of events in relation to various of these transactions should be rejected. In my view, that is not relevant to the question which presently falls to be determined. 23 The Crown also pointed to remarks made by the appellant when he gave evidence in the sentence proceedings, which were said to be inconsistent with the answers which he gave in the ERISP. He also provided a similar version to the author of the pre-sentence report. I do not consider that those references suggest any such inconsistency. In any event, they are remarks made in response to questions of a global kind in which the appellant was not asked to, and did not purport to, recount a precise sequence of events in relation to each of the various transactions. What he was at pains to indicate however, in the passages to which we were referred, was that he received no financial benefit whatsoever from his involvement in these activities. 24 In view of the conclusion at which I have arrived concerning the first and third transactions, it is unnecessary to consider what the appellant said as to the circumstances surrounding the second of the transactions. 25 The Crown also submitted that a court should only intervene in rare cases to quash a conviction in circumstances in which there had been a plea of guilty because, as it correctly pointed out, there is a public interest in the finality of proceedings and also because in the ordinary course of events a plea of guilty is an admission of all the necessary legal ingredients of the offence. So much may be accepted. 26 The question under consideration is to be determined by reference to s 6(1) of the Criminal Appeal Act 1912. In Jackson, Sully J (with whom Wood CJ at CL and Hislop agreed) said that "it is the positive duty of the Court, pursuant to s 6(1) of that Act, to set aside a conviction if the Court is of the opinion … that on any … ground whatsoever there was a miscarriage of justice". 27 The relevant authorities and the principles to be applied, were examined by this Court in R v Toro-Martinez (2000) 114 A Crim R 533. Spigelman CJ (with whom Newman and Adams JJ agreed) referred to those authorities in the following passage: It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise… A formulation which has frequently been referred to with approval is that of Sholl J in Murphy [1965] VR 187 at 191: " ... for some other reason which enabled one to say that her plea was not really attributable to a genuine consciousness of guilt ... " To similar effect are the observations of Lee J (with whom McInerney and Campbell JJ agreed) in Sagiv (1986) 22 A Crim R 73 at 80, who applied a test of "mistake or other circumstances affecting the integrity of the plea as an admission of guilt ... ". The significance of this factor is also affirmed in Cincotta (unreported, Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995) in which Hunt CJ at CL with whom Grove and Allen JJ agreed, said (at p 1): "A person who has pleaded guilty will be permitted to withdraw that plea where it has been shown that a miscarriage of justice has occurred. The applicant for such permission bears the onus of showing the existence of that miscarriage. It will be shown to exist where, for example, the plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty. There must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt ." (Emphasis added.) To similar effect is the reasoning in the joint judgment of Brennan, Toohey and McHugh JJ in Meissner (1995) 184 CLR 132 at 141; 80 A Crim R 308 at 313 where their Honours said: "A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence." Furthermore, as Dawson and McHugh JJ said in Maxwell (1996) 184 CLR 501 at 511; 87 A Crim R 180 at 186: "The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake, or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered." Both Murphy and Sagiv were referred to with approval in this Court in Davies (unreported, Court of Criminal Appeal, NSW, No 60418 of 1992, 16 December 1993) by Badgery-Parker J, with whom Wood and Matthews JJ agreed (at pp 3, 4 and 7) and which has frequently been referred to with approval. Badgery-Parker J concluded: "The appellant's submissions that it would in the circumstances be unfair to hold him to his plea draws attention to the two factors which to my mind are the significant factors in this case. The test is whether the circumstances revealed a miscarriage of justice. The need to accord finality to a plea of guilty because of its status as a solemn admission of all of the ingredients of the offence is postulated upon knowledge by the person entering that plea of all the facts (see the passage cited earlier from the judgment of Lee J in Sagiv ) and it is not necessary to be accorded such finality if there are circumstances which indicate that the plea was not really attributable to a genuine consciousness of guilt' (per Sholl J in Murphy ). If the integrity of the plea is bona fide questioned because it appears that the person who entered that plea was not in possession of all the facts and did not entertain a genuine consciousness of guilt, then in my opinion the plea of guilty ought to be set aside and a new trial ordered if (but only if, and the onus lies on the appellant) it is clear that there is, in the words of Sholl J an issuable question of guilt ' - to put it more simply, if there is a real question to be tried . If the plea was not entered into with full knowledge of the facts and as a genuine recognition of guilt, and if the material before the Court of Criminal Appeal shows that there is a real question about the guilt of the accused, then the proper course must be to set aside the plea of guilty, to quash the conviction, and to order a new trial." (my emphasis) (at 537-538)

28 In the present case, it is submitted that the plea of guilty was entered by the appellant upon a particular understanding of the legal significance of the case against him, including of course the admissions which he had made in his ERISP. The uncontested evidence before the Court establishes that he would have pleaded not guilty had he known of what is said to be their true legal significance. Accordingly I accept the submission that his plea of guilty could not be said to be "really attributable to a genuine consciousness of guilt" because he may well have, upon his version of events, an answer to the charge. In those circumstances, it cannot be said that there is not "an issuable question of guilt" nor "a real question to be tried". 29 In my view, the appeal against conviction should be allowed, the conviction and sentence quashed and a new trial ordered. 30 That then leaves the question of the application for leave to appeal against the sentence imposed in respect of count 2. A statement of facts was tendered on sentence. It is in the following terms: On the evening of 4 July, 2002 at about 8.30 pm, the prisoner and Police Under-Cover Office "Mick" met at the prisoner's residence, 6 Rankin Street, Cobar. Their conversation was recorded. On page three of the transcript of that conversation the prisoner is recorded as saying: "….My brother's on his way and he's bringing 2 ounces with him". Mick replied: "How long are you going to keep it here for me?" The prisoner said "Mate I'll keep you some. I'll keep you a bit of…" UCO: "Both". The prisoner continued: "I'll keep the goey as long as you want." The prisoner admits that this constitutes an agreement to supply a prohibited drug (methylamphetamine), such agreement being within the definition of supply within s.4 of the Drug Misuse and Trafficking Act. There is no allegation that the agreement was carried out. 31 As I have already indicated, the sentence imposed in respect of count 2, was ordered to be served concurrently with that imposed upon count 1. This offence involved the same parties and amounted to a continuation of the same type of conduct which had been displayed in respect of count 1, albeit that the appellant was charged with different types of offence. In the circumstances the sentencing judge was required to have regard to the requirements set out in Pearce v The Queen (1998) 194 CLR 610. 32 It is plainly apparent however that the sentence imposed upon count 2 was necessarily affected by the context in which it had occurred namely, two weeks after the activities which had given rise to count 1 in the indictment. The application of proper sentencing principles dictated that that fact was, and indeed should have been, a prominent feature of the sentencing exercise in respect of count 2. 33 In those circumstances the parties agreed, after some debate, that the most desirable course was to remit the matter, pursuant to s 12(2) of the Criminal Appeal Act, to the District Court. I agree with that proposal. 34 This Court has on appropriate occasions remitted matters to a "court of trial" in situations in which it has not been put in possession of all the necessary material to enable it to embark upon the task of resentencing. For recent examples see R v McLean (2001) 121 A Crim R 484; R v Leete (2001) 125 A Crim R 37. R v Pamplin [2001] NSWCCA 327. 35 Given the view which I have expressed about the disposition of count 1 and given that proceedings in respect of that matter remain to be finalised, it does not appear to me to be appropriate to have any regard to that conduct, when considering the application for leave in respect of count 2. Considered in isolation, that is without having regard to the conduct which is alleged in respect of count 1, the objective gravity of the appellant's conduct in respect of count 2 takes on a rather different complexion (even after proper regard is had to the matters on the Form 1). There were also a number of subjective features of the case which had to be taken into account. Prominent amongst those considerations were the appellant's plea of guilty and assistance to the authorities for which the sentencing judge allowed a discount of 50%, his drug dependency, the absence of any prior convictions for drug offences, the fact that this was his first custodial sentence and evidence as to his rehabilitation prospects. In all the circumstances, I am of the view that the sentence cannot stand and must be quashed. 36 The outcome of the proceedings in respect of count 1 will bear significantly upon an assessment of the objective gravity of the conduct in respect of count 2. Given the admissions which the appellant has made, which are apparently uncontested, it is clear that proper regard will have to be paid to that earlier conduct. What is presently unknown is the extent of, and the significance, that that prior conduct will ultimately assume. In my view the sentencing discretion should be exercised afresh, in accordance with established principles, and in the light of the material which the parties choose to put before the sentencing court. In those circumstances, it is not appropriate to express any views as to the sentence which was passed in respect of count 2. 37 Moreover, we have been informed that subsequent to sentence being imposed in the District Court in respect of these matters, the appellant was convicted in the Local Court of an unrelated offence of supplying a prohibited drug. He received a further sentence of imprisonment in respect of that matter. That sentence is itself the subject of a severity appeal to the District Court. It is common ground that it is highly desirable that the one court deal with all the appellant's matters at the one time. To take any other course would lead to a quite unnecessary fragmentation of the proceedings. 38 An order remitting the matter to the District Court will also have the effect of preserving any future entitlement which the applicant may have to review any decision which is made in that court following the remitter. See Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661. 39 I propose the following orders.

1 Appeal against conviction in respect of count 1 be allowed.

2 The appellant's plea of guilty to that count be set aside.

3 The conviction and sentence be quashed and a new trial ordered.

4 The sentence in respect of count 2 be quashed and remitted to the District Court for sentence.

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