R v Cocouz[2000] QCA 370

COURT OF APPEAL

PINCUS JA

MUIR J

JONES J

CA No 140 of 2000

THE QUEEN

v.

VASILE COCOUZ Applicant

BRISBANE

..DATE 12/09/2000

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against sentence.  The applicant was convicted of two charges of unlawfully supplying a dangerous drug, and sentenced to six years' imprisonment on each count.

The offences were committed in July 1998, the month in which the applicant turned 40.  His criminal history includes a number of driving offences, for two of which he was sentenced to short terms of imprisonment.  His only other offence on the record is stealing, in 1986; that produced a fine.

The two instances of supply both related to heroin, the first batch containing about six grams in weight of pure heroin and being 66 per cent pure.  The second batch contained about 10 grams of pure heroin and was 76 per cent pure.  The price of the first was $2,000 and the second $3,500.

The applicant pleaded guilty, having initially told the police lies about these matters. 

A point which was emphasised below was that trafficking was no part of the Crown case, not being alleged.  The Crown relied upon Patena, CA No 107 of 1996, 28 May 1996, where there were eight counts of supplying heroin, and the sentence was five years' imprisonment with recommendation for parole after 15 months.  The applicant there was a heroin user and it was not clear how much personal benefit she obtained from the transactions. 

In the principal judgment, it was said that

"[O]ffenders who plead guilty to trafficking usually receive significantly longer sentences than those who are charged with and plead guilty to supply."

The Court pointed out that it cannot be assumed that

"a collection of offences of unlawful supply ... will necessarily attract a penalty well below any trafficking offence." 

The judgment said that the sentence of five years was a substantial one, but not manifestly excessive.

In the present case, there were two, as opposed to eight counts as there were in Patena.  Mr Clark, who has addressed us helpfully on behalf of the Crown, points out, however, that in the present case the two instances of supply involved a substantial amount of heroin. 

After discussing the facts of the present case, the learned sentencing Judge remarked:

"I regard the amounts of heroin as indicating that you were in business, in a substantial way, of supplying heroin."

His Honour also pointed out that the applicant is not an addict and "clearly on sold on the basis that the person with whom you dealt would on-sell in smaller amounts as a retailer".

The Judge also observed:

"I am told you own your own small business, but you were clearly supplementing the income you make from that by this more lucrative activity."

Unfortunately, the expressions used - referring to being in business - may convey the impression that his Honour was taking into account the fact of being in business as a circumstance of aggravation.  That this impression has been created does not mean that his Honour so intended but, unfortunately, one must adhere to the language which was used.  In this connection, I refer to De Simoni (1981) 147 CLR 383, which has been applied in cases such as Medcraft (1992) 60 A Crim R 181.

The learned primary Judge also referred to "some limited cooperation with the officers of the National Crime Authority".  That is a reference to a letter dated 21 March 2000 which was apparently before the sentencing Judge.  We have examined the letter, as have counsel, and it shows the extent of the cooperation.  Mr Clifford, who appears for the applicant, has agreed that it is not wise for us to refer in detail to the extent of the cooperation, although it does not appear to be covered by section 13A of the Penalties and Sentences Act 1992.  It is not covered, because there is no undertaking involved, but merely past cooperation.

The position, which is perhaps unfortunate, is that we have to take the letter into account in favour of the applicant but cannot set out any details of what it contains.

As I have mentioned, a difficulty in the case is that the remarks quoted above from the learned sentencing Judge may be taken to imply that the Judge treated the applicant as a person in the business of supplying heroin.  On the information before the Court, one must say that that inference appears to be correct, but it is plain that the Judge could not treat it as a factor aggravating what would otherwise have been the sentence.

The sentence of six years which was imposed is plainly a high one for a case of two supplies only, even taking into account, as Mr Clark points out, the amount of heroin which was supplied. 

Against the applicant, there is the fact that he is not a heroin user and the two offences to which he pleaded guilty were purely commercial.  In his favour is his plea of guilty, the fact that he has no similar offences in his record and the fact that his only offence, apart from driving offences, is a relatively minor stealing offence.

A matter which influences me is the letter from the NCA to which I have made reference but which I do not propose to discuss. 

In my opinion, the sentence is, as Mr Clifford has argued, excessive for the reasons which I have given.  The contention Mr Clifford advanced was that there should be a recommendation for early parole.  In my opinion, a preferable course is simply to reduce the head sentence. 

I would, therefore, grant the application, allow the appeal and substitute for the sentences of six years on each count which were imposed below a sentence of four years and six months on each count.

MUIR J:  I agree.

JONES J:  Yes.  I agree that the sentence of six years' imprisonment was manifestly excessive.  The applicant pleaded guilty to only two counts of supply of heroin.  Even though the quantity supplied on each occasion was large and the heroin in a very pure form, the fact remains that we are dealing with two counts of supply.  The sentence was more appropriate to the lower end of trafficking charges as his Honour essentially conceded in his reasons.

In my view, there was insufficient allowance made for the fact of the relatively innocuous criminal history and the fact of the plea of guilty and the applicant's cooperation with the authorities.  I agree with the reduction in the sentence proposed by the presiding Judge.

PINCUS JA:  The order will be application granted, appeal allowed.  With respect to each count, a sentence of four and a half years is substituted for the sentence of six years imposed by the learned sentencing Judge.