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Court of Criminal Appeal 31 May 2002

Regina v Adam Maxwell Cook

[2002] NSWCCA 216

Drugs
SENTENCE APPEAL AGAINST SEVERITY LARGE COMMERCIAL QUANTITY OF COCAINE

Citation: Regina v Adam Maxwell Cook [2002] NSWCCA 216
Court: Court of Criminal Appeal, New South Wales
Date: 31 May 2002
Judge(s): Buddin J; Smart AJ

Background

The applicant pleaded guilty in the District Court to supplying not less than a large commercial quantity of cocaine. The quantity seized was 2.003 kilograms, exactly twice the large commercial quantity threshold, and the maximum penalty for the offence is life imprisonment and a fine of $550,000.

Police stopped the applicant while he was the sole occupant of a vehicle and found two roughly equal blocks of cocaine concealed in shopping bags. The applicant declined to answer questions about the drugs during a recorded interview, and his later account to the sentencing court, that he had been recruited by a casual acquaintance to deliver an unknown parcel, was met with scepticism by the trial judge.

The District Court sentenced the applicant to 6 years and 4 months imprisonment with a non-parole period of 4 years and 9 months. The applicant accepted the head sentence as within range but challenged only the length of the non-parole period, arguing the sentencing judge had failed to properly find "special circumstances" under the Crimes (Sentencing Procedure) Act 1999.

  • Whether the sentencing judge erred in refusing to find "special circumstances" under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge incorrectly confined the special circumstances inquiry to the question of rehabilitation alone, excluding other relevant factors
  • Whether, if error were established, a different sentence was warranted in law under s 6(3) of the Criminal Appeal Act

Decision

Buddin J, delivering the lead judgment, accepted that the scope of relevant considerations for a "special circumstances" finding extends beyond rehabilitation to encompass the full range of issues bearing on the minimum period of actual incarceration. His Honour drew on the Court's earlier decision in R v Simpson for this principle.

However, Buddin J concluded that the applicant had not demonstrated any actual miscarriage of the sentencing discretion. Reading the sentencing remarks as a whole, the sentencing judge had addressed both objective and subjective factors across multiple pages before reaching his conclusion on special circumstances. The reference to those factors in the impugned passage did not represent the first or only occasion on which they were considered. The submission that the judge confined himself solely to rehabilitation was not made out.

Buddin J added that even if error had been established, this was not a case in which a different sentence was warranted in law. The submission that the applicant's culpability was at the bottom of the range, given the quantity involved and his level of involvement, was characterised as unsustainable.

Smart AJ agreed with the outcome but expressed some concern about the absence of detailed analysis of the medical evidence in the sentencing remarks. The applicant had been diagnosed with major depressive illness, and a psychiatrist's report indicated that incarceration was having a very negative impact on his mental state. Smart AJ identified the applicant's health as the only factor that arguably engaged the special circumstances threshold, but ultimately concluded that the gravity of the offence meant no lesser non-parole period would sufficiently reflect the criminality involved.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the inquiry into "special circumstances" is not limited to rehabilitation but must encompass the full range of considerations bearing on the appropriate minimum period of actual incarceration, as confirmed in R v Simpson.
  • A finding of special circumstances remains a discretionary decision, and establishing error requires more than identifying that a sentencing judge referenced rehabilitation prominently. The remarks on sentence must be read as a whole.
  • No error was established where the sentencing judge had canvassed relevant objective and subjective factors throughout the remarks, even if the concluding passage did not enumerate all of them afresh.
  • In dismissing the appeal, the Court confirmed that even a demonstrated error in the special circumstances analysis will not produce a different result if no other sentence is warranted in law under s 6(3) of the Criminal Appeal Act.
  • Where an offence involves twice the large commercial quantity threshold, the gravity of the offence may independently justify a non-parole period even where there is evidence of adverse mental health impact from imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Appeal Act (NSW), s 6(3)
- Drugs Misuse and Trafficking Act (NSW), ss 25(2), 33(3)(a)

Cases
- R v Simpson [2001] NSWCCA 534