Regina v Adam Maxwell Cook

[2002] NSWCCA 216

CITATION:	Regina v Adam Maxwell Cook [2002] NSWCCA 216
FILE NUMBER(S):	CCA 60799/01
HEARING DATE(S):	31 May 2002
JUDGMENT DATE:	31 May 2002
PARTIES :	Regina Adam Maxwell Cook
JUDGMENT OF:	Buddin J at 1; Smart AJ at 22

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/0766
LOWER COURT JUDICIAL OFFICER :	McGuire DCJ

COUNSEL :	PJ Power (Crown) WC Barber (Applicant)
SOLICITORS:	SE O'Connor (Crown) Stewart Green Mijovick (Applicant)
CATCHWORDS:	Sentence - appeal against severity - large commercial quantity of cocaine - factors relevant to a finding of "special circumstances" - whether some other sentence "warranted in law"
LEGISLATION CITED:	Criminal Appeal Act Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act
CASES CITED:	R v Simpson [2001] NSWCCA 534
DECISION:	Leave to appeal granted. Appeal dismissed.

60799/01

BUDDIN J
SMART AJ

FRIDAY 31 MAY 2002

REGINA v ADAM MAXWELL COOK

Judgment

1 BUDDIN J: The applicant pleaded guilty in the District Court to a charge that he did supply not less than the large commercial quantity of cocaine. The quantity involved was 2.003 kilograms which is twice the large commercial quantity prescribed by the legislature. The maximum penalty for this offence is life imprisonment and/or a fine of $550,000. See ss 25(2), 33(3)(a) Drugs Misuse and Trafficking Act.

2 Judge McGuire sentenced the applicant to imprisonment for a period of 6 years and 4 months to commence on 4 May 2001 with an associated non-parole period of 4 years and 9 months which is due to expire on 3 February 2006. His Honour was under the erroneous impression that the maximum penalty was 25 years’ imprisonment. Not surprisingly no complaint is made in respect of that matter.

3 The applicant seeks leave to appeal against the sentence imposed. In doing so the applicant expressly concedes that the head sentence which was fixed was within the appropriate range. The complaint is accordingly confined to the length of the non-parole period.

4 In that respect the challenge is to be found in a submission that his Honour erred in failing to find “special circumstances” within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Furthermore in considering whether “special circumstances” existed, His Honour fell into error in proceeding upon the assumption, so it is contended, that the question of rehabilitation was the only relevant factor to be taken into account. No other ground is advanced.

5 The facts in the matter can be shortly stated. As a result of information received, police stopped a Ford Falcon motor vehicle bearing Queensland registration plates in Carrington Road, Waverley. The applicant was the driver and sole occupant of the vehicle. Upon searching the vehicle, police located 2 roughly equal sized blocks of cocaine which were concealed inside shopping bags. Also located in the applicant’s left hand trouser pocket was a pair of latex surgical gloves.

6 The applicant participated in an ERISP and although he answered some of the questions asked of him he declined to answer any questions in respect of the drugs which had been discovered in the vehicle or about the surgical gloves. He denied having any knowledge of the contents of the packages which contained the cocaine. Indeed at one stage he denied having any knowledge that the packages themselves were in the car. Somewhat inconsistently with the version he later gave in Court he told an officer from the Probation and Parole Service that he had been given $500 to deliver what he understood to be car parts. He told Dr Westmore, who had prepared a report on his behalf, that he had no idea what was in the bags.

7 The applicant gave evidence during the sentencing proceedings which was designed to suggest that his role in the transaction was a very minimal one. His Honour summarised the effect of that evidence in the following terms:

He claims that as a result of straightened financial circumstances he let it be known that he is prepared to do anything to obtain funds. He further claims that he is approached by a man named Gaz whom he had met casually at the beach and at a hotel. Gaz asked him to collect a parcel at which time he would be advised of the address for delivery. He was to convey that parcel to the nominated address, leave it in his car with the keys in the car and the parcel would be collected therefrom. When apprehended and interviewed he made no mention of this story.

8 The sentencing judge indicated his scepticism about what the applicant had told him. That was a view that was well open to his Honour and indeed no complaint is made in that respect. Nevertheless his Honour was prepared to find that the applicant was not “a principal in the drug venture.” His Honour however observed that it was “difficult to accurately categorise his involvement” given the view which he had arrived at concerning the applicant’s credibility. His Honour went on to say that the applicant had “a greater awareness of who was involved with the drugs and what was entailed in his possession of them” than he had revealed in his evidence.

9 In sentencing the applicant the sentencing judge took into account in his favour a number of subjective matters. These included:

(a) his plea of guilty which was entered at the earliest opportunity;

(b) his impressive work record both as an employee and as someone who had conducted his own business over a number of years;

(c) the devastating impact upon his life of a motor bike accident which had not only caused him serious injuries and emotional distress but had led directly to the collapse of a business venture and a long standing relationship;

(d) the promising efforts that he had made towards rehabilitation whilst he had been in custody; and

(e) his favourable prospects of future rehabilitation.

10 The applicant had been convicted and fined in 1995 in Forster Local Court upon three charges relating to cannabis, namely supply, possession and administer. His Honour effectively put those matters to one side for sentencing purposes. His Honour specifically noted that he was “well aware that this is [the applicant’s] first sentence of imprisonment.”

11 The applicant urged a number of matters upon the sentencing judge which, it was contended, would justify a finding that “special circumstances” existed. They included the following:

“i The Appellant’s prior good record and fact that he had never before been in custody.
ii The severe, physical, emotional, psychological and financial impact that a serious motor vehicle accident had on the life of the Appellant.
iii The Appellant’s proven ability to rehabilitate which was evident by the time of the sentence.
iv The prospects for future rehabilitation.”

12 His Honour’s conclusion in relation to that submission emerges from the following passage in the Remarks on Sentence which appears just before his Honour imposed the sentence to which reference was made earlier:

I have considered the question of special circumstances and I find none. This man will have ample opportunity to rehabilitate himself during the parole period to be set if he is so inclined.
I am well aware that this is his first sentence of imprisonment.
I have taken into account the various subjective matters, in particular the utilitarian value of his plea, his previous industry, the effects of his accident, his efforts thus far to rehabilitating himself in gaol and his eventual prospects of rehabilitation.

13 From this passage it can be deduced, so the appellant submits, that the sentencing judge “erroneously confined his consideration of special circumstances to the question of rehabilitation.” It is further submitted that it was only after having found that there were no special circumstances that his Honour went on to consider the subjective features of the case.

14 In R v Simpson [2001] NSWCCA 534 this Court considered the proper approach to be adopted in relation to the issue of “special circumstances”. Spigelman CJ observed that:

[T]he scope of the considerations relevant to the determination of “special circumstances” must encompass the full range of issues which are relevant to the determination of the minimum period of actual incarceration without hope of release on parole (at para 57).

15 Nevertheless it is abundantly clear from Simpson that a finding in respect of “special circumstances” is a discretionary matter. As to that matter Spigelman CJ said:

[t]he issues of law that may arise are the same as those which arise on appeal from other discretionary decisions, including whether or not, on the facts of a particular case, a specific fact, matter or circumstance is, either alone or in combination with other facts, matters and circumstances, capable of constituting “special circumstances” of the requisite character, i.e. that it is capable of justifying a variation in the statutory proportion which the legislature has enacted.
More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence. (at paras 62-3)

A little later his Honour said:

There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive. (emphasis added) (at para 73)

16 The applicant sought to rely upon the decision in Simpson. As it happens the present case bears considerable similarity to the circumstances which presented themselves in Simpson. There, as here, the primary judge had said that he saw no reason to find special circumstances.

Spigelman CJ observed that:

[T]he Applicant submitted that this reference contained some form of ambiguity in that it was not clear whether his Honour was adopting a restrictive view of special circumstances by saying that none of the facts and matters he had referred to were capable, as a matter of law, of constituting special circumstances or, whether, on the other hand, his Honour accepted that the matters were capable of constituting special circumstances but found that, in the circumstances of the case, they were not sufficiently “special” to conclude that the statutory relationship should be varied.
Decisions on sentencing matters by District Court judges should not be analysed so finely. (See R v Majors) (1991) 54 AcrimR 334 at 338.) The suggestion of ambiguity in the Applicant’s submissions is to manufacture an error in his Honour’s reasons which nothing in his Honour’s reasons warrants.
The Applicant sought to draw some support from the fact that the sentence that I have quoted above appears immediately after his Honour’s treatment of the issue of mitigation by reason of assistance to the authorities. I reject the suggestion that his Honour may only have been referring to the subject matter he was considering in the paragraphs immediately before the reference to “special circumstances”. In the pages prior to that reference, his Honour had referred expressly to the various reports that were before him and to all of the matters which the Applicant asked this Court to take into account in order to make a finding of special circumstances.
In my opinion, his Honour’s reasons should be understood to say that all of the facts and matters to which he had earlier referred did not constitute a sufficient “reason to find” special circumstances. His Honour was entitled to make a judgment of that character. No error is suggested which would entitle this Court to intervene.
The factors which, in combination, were said to constitute special circumstances in this case included the express finding by the sentencing judge of good prospects for rehabilitation and a number of subjective considerations: few prior offences, a stable relationship, the effects of the car accident, etc. I find nothing particularly special about this combination of circumstances. Indeed they seem to me to be quite unremarkable. They are all considerations entitled to weight in determining the head sentence and have, no doubt, led to a lower head sentence and, therefore, to a lower non-parole period, than would have been imposed in their absence. It is by no means clear to me that they would, even in combination, permit a finding of special circumstances. I am quite satisfied that they do not require such a finding. There is no error by the sentencing judge which justifies the intervention of this Court. (at paras 89-93)

17 For the reasons advanced by Spigelman CJ in Simpson it is my view that a similar conclusion should be reached in respect of the present matter. Although it was open to the sentencing judge in the present case to find “special circumstances” there was certainly no requirement for his Honour to do so.

18 Nor in my view is there any substance in the complaint that the sentencing judge regarded the issue of rehabilitation as being the only matter that bore upon the question of “special circumstances”. So much is clear from a fair reading of the entirety of the Remarks on Sentence. Moreover in the pages that preceded the passage referred to earlier, his Honour had referred in some detail to those matters, both objective and subjective, that bore upon the exercise of the sentencing discretion. Those considerations were relevant not only to the appropriate overall sentence, and the non-parole period but also to the question of “special circumstances.” It would be quite wrong, for example, to conclude that his Honour’s reference to the subjective features of the case appeared for the first time in the passage to which exception is taken.

19 In my view the applicant has not demonstrated that the sentencing discretion miscarried in this or any other respect.

20 Even if I had been of the view that error had been demonstrated, this is not a case in which I would have formed the opinion, pursuant to s 6(3) of the Criminal Appeal Act, that “some other sentence…is warranted in law and should have been passed.” It follows in my view that the appellant’s submission that his “culpability based on the quantity of the drug seized and the level of involvement is certainly at the bottom end of the range” is quite unsustainable.

21 I propose the following orders:

1 Leave to appeal granted.

2 Appeal dismissed.

22 SMART AJ: By virtue of s 44(2) of the Crimes (Sentencing Procedure) Act there has to be a decision by application of the composite requirement that the circumstances be sufficiently special for the statutory proportion to be reduced. In my opinion, there was only one factor that even arguably came within that composite requirement and that related to the applicant's health and is based upon the report of Doctor Westmore. That report concluded that the applicant was suffering from a major depressive illness with symptoms of depression of mood and anxiety.

23 It appears from the evidence and from a further portion of Doctor Westmore's report that the applicant had been significantly depressed since his motorbike accident. Doctor Westmore further stated that the applicant's incarceration was having a very negative impact on his mental state.

24 There is no detailed analysis of the medical evidence in the judgment under review and I must confess that that has caused me a measure of concern. However, I have ultimately come to the view that when regard is had to the gravity of the offence, no lesser non-parole period than that imposed would sufficiently reflect the criminality involved in the offence. I agree with the orders proposed.

25 BUDDIN J: The orders will be as I have proposed.

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