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Court of Criminal Appeal 30 July 2004

R v Mark Anthony Cooney

[2004] NSWCCA 255

Drugs
CRIMINAL LAW ONGOING SUPPLY OF AMPHETAMINES

Citation: Mark Anthony Cooney v R [2004] NSWCCA 255
Court: NSW Court of Criminal Appeal
Date: 30 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The appellant pleaded guilty in the District Court to two counts arising from drug transactions in regional NSW in June and July 2002. The first count charged him with ongoing supply of methylamphetamine under s 25A(1) of the Drug Misuse and Trafficking Act 1985, based on four separate supply transactions in Bourke across two days. The second count charged a single supply of methylamphetamine at Cobar on 4 July 2002. He was sentenced to three years' imprisonment on count 1 and a concurrent two-year term on count 2.

What had been intended as a severity appeal took a different direction after the Court of Criminal Appeal handed down its decision in R v Jackson [2004] NSWCCA 110. Jackson was a co-offender of the appellant, and that decision resolved a contested question about the elements of a s 25A(1) offence. The appellant sought to go behind his guilty plea to count 1 on the basis that, had the law been clarified before he entered his plea, he would have pleaded not guilty.

The appellant supported his appeal with four affidavits. His own affidavit stated that he pleaded guilty on the advice of a duty solicitor who told him the prosecution could prove its case. Three solicitors who had acted for him at various times each swore that, knowing the Jackson decision, they would have advised him that a not guilty plea was open.

  • Whether the s 25A(1) offence of ongoing supply requires proof that the accused personally received a financial or material reward for each supply transaction.
  • Whether the appellant's guilty plea to count 1 could be set aside in light of the intervening clarification of the law in R v Jackson.
  • What orders were appropriate in respect of count 2, given the outcome on count 1 and the need to consolidate related proceedings.

Decision

The Court of Criminal Appeal confirmed the interpretation established in R v Jackson: a conviction under s 25A(1) of the Drug Misuse and Trafficking Act 1985 requires proof that the person who carried out the relevant supplies personally received the financial or material reward. The section targets the individual making a profit from drug supply, not commercial drug dealing in the abstract.

The Court accepted that the appellant's circumstances were not identical to those in Jackson, but found that the clarification of the law was material. Had the appellant and his advisers known the correct legal position at the time, the advice given and the course taken would have been different. The guilty plea to count 1 was therefore set aside and a new trial ordered.

On count 2, the Court quashed the sentence and remitted it to the District Court for resentencing. The outcome on count 1 would significantly affect the objective gravity of the conduct underlying count 2. Additionally, the appellant had since been convicted in the Local Court of an unrelated supply offence, and that matter was itself subject to a severity appeal. The Court considered it highly desirable for a single court to deal with all matters together to avoid unnecessary fragmentation of proceedings.

Orders Made

  • Appeal against conviction on count 1 allowed.
  • The appellant's guilty plea to count 1 set aside.
  • Conviction and sentence on count 1 quashed; new trial ordered.
  • Sentence on count 2 quashed and remitted to the District Court for resentencing.

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, it is an essential element of the ongoing supply offence that the accused personally received a financial or material reward from the relevant supply transactions.
  • A guilty plea may be set aside on appeal where an intervening appellate decision clarifies the law in a way that would have materially changed the advice given to the accused and the plea entered.
  • Where the outcome of a conviction appeal significantly affects the objective gravity of conduct on a related charge, the sentencing discretion on that related charge should generally be exercised afresh rather than adjusted on appeal.
  • Remitting all matters to a single court for consolidated resentencing avoids fragmentation of proceedings, particularly where the accused faces separate sentences from different courts that remain subject to appeal.
  • The Court of Criminal Appeal confirmed that remitting a matter to the District Court preserves any future entitlement the appellant may have to seek review of any decision made following that remitter, consistent with Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)

Cases
- R v Jackson [2004] NSWCCA 110
- Histollo Pty Ltd v Director-General National Parks and Wildlife Service (1998) 45 NSWLR 661
- Pearce v The Queen (1998) 194 CLR 610
- R v Leete (2001) 125 A Crim R 37
- R v McLean (2001) 121 A Crim R 484
- R v Pamplin [2001] NSWCCA 327
- R v Toro-Martinez (2000) 114 A Crim R 533