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Court of Criminal Appeal 10 December 2021

Cooper v R

[2021] NSWCCA 292

DrugsPublic order & justice offences

Citation: Cooper v R [2021] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 10 December 2021
Judge(s): Bathurst CJ, Harrison J, Wilson J (judgment delivered by Wilson J)

Background

The applicant was sentenced in the District Court at Lismore in March 2021 to an aggregate term of 3 years and 6 months imprisonment with a non-parole period of 2 years. The sentence covered two offences: failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), and ongoing supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW). Two further offences (supply of a prohibited drug and goods in custody) were taken into account on sentence.

The underlying facts revealed that the applicant, a registered child protection offender, had concealed a new mobile phone service from authorities. Police intercepted that service and found that he had supplied methylamphetamine on at least 19 occasions over an 18-day period in March 2020, operating an established customer base with set prices. A search of his home uncovered drug paraphernalia and items suspected to be stolen.

The applicant carried an extensive criminal history dating from 1991, spanning violence, drug, and property offences. At the time of the current offending, he was in breach of multiple Intensive Corrections Orders (ICOs) and a Community Corrections Order (CCO). He sought leave to appeal against the sentence on three grounds.

  • Whether the sentencing judge failed to apply the correct legal principles relating to mental disorders when assessing the applicant's subjective case.
  • Whether, in the alternative, the sentencing remarks were insufficient to demonstrate that mental conditions had been properly considered, raising a real possibility of legal error.
  • Whether the aggregate sentence was manifestly excessive having regard to the objective seriousness of the offending and the applicant's personal circumstances.

Decision

Mental condition grounds (Grounds 1A and 1B)

The Court found that the evidence before the sentencing judge concerning any mental disorder was limited. The sentencing judge had referred to the applicant's use of methylamphetamine and to some suggestion of mental health difficulties, but the Court found no appellable error in how those matters were treated. The evidence did not establish a diagnosable condition that would have required separate or more formal consideration under the relevant sentencing principles. Both the primary ground and the alternative ground failed.

Manifest excess (Ground 2)

The Court rejected the submission that the sentence was manifestly excessive. The applicant was a persistent, low-level street dealer who had supplied methylamphetamine on more than six times the minimum number of occasions required to constitute the offence under s 25A of the Drug Misuse and Trafficking Act 1985, in a period of only 18 days. His subjective case offered little mitigation: he had limited remorse, a medium risk of reoffending, poor prospects of rehabilitation, and was in breach of several ICOs and a CCO at the time of offending.

The Court also addressed the applicant's reliance on statistical sentencing data and other decided cases as comparators. It reiterated that the available sentencing range for any offence is defined by the statutory maximum, not by statistical patterns drawn from other cases. Pointing to a sentence near the top of a statistical range does not, of itself, demonstrate that the sentencing discretion miscarried. The Court was not persuaded the sentence was in any way unfair or unjust.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the correct sentencing range for any offence is set by the statutory maximum penalty, not by statistics or comparisons with sentences imposed in other cases.
  • No error was established in the sentencing judge's treatment of the applicant's mental health where the evidence of any disorder was limited and fell short of establishing a diagnosable condition requiring distinct consideration.
  • A sentence sitting near the higher end of a statistical distribution does not, without more, demonstrate manifest excess; the sentencing discretion must be assessed against the facts of the offence and the offender's circumstances.
  • Persistent breach of supervised orders (ICOs and CCOs) at the time of offending, combined with an extensive criminal history and limited subjective mitigation, were treated as significant factors that justified a substantial sentence.
  • In dismissing the appeal, the Court reinforced that an offender who far exceeds the minimum conduct threshold for an ongoing supply offence will face considerable difficulty in mounting a manifest excess argument against a sentence that falls within the statutory range.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33

Cases
- Ahmad v R [2019] NSWCCA 198
- Blake v R [2021] NSWCCA 258
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hayek v R [2016] NSWCCA 126
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Imbornone v R [2017] NSWCCA 144
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Owen v R [2017] NSWCCA 54
- R v Carter [2003] NSWCCA 243
- R v Loudon [2020] NSWDC 57
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64