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Court of Criminal Appeal 12 June 2002

REGINA v COOK

[2002] NSWCCA 240

Drugs

Citation: Regina v Cook [2002] NSWCCA 240
Court: NSW Court of Criminal Appeal
Date: 12 June 2002
Judge(s): Adams J; Blanch AJ

Background

The applicant pleaded guilty in the District Court at Parramatta to knowingly taking part in the manufacture of pseudoephedrine, a prohibited drug, at residential premises in Prospect on 22 January 2000. Police executing a search warrant found extensive drug manufacturing equipment, over 10,000 Sudafed tablets, and 299.6 grams of pseudoephedrine in various forms. Additional quantities of methylamphetamine and cannabis were taken into account on sentencing.

The sentencing judge, Coorey DCJ, imposed a sentence of three years with a non-parole period of one year, finding special circumstances that justified departing from the standard ratio between head sentence and non-parole period. The judge took into account the applicant's deeply disadvantaged background, her guilty plea at the first opportunity, the impact of imprisonment on her five children, and her status as a first-time prisoner.

The applicant, self-represented, sought leave to appeal against the sentence, arguing across seven grounds that various personal circumstances warranted a lesser or non-custodial penalty.

  • Whether the sentencing judge erred in the sentence imposed for manufacturing a prohibited drug
  • Whether the applicant's mitigating circumstances, including her background, first offence status, children, and rehabilitation, warranted appellate intervention
  • Whether the sentencing judge was improperly influenced by the Crown's indication that it would appeal any non-custodial sentence
  • Whether post-sentence rehabilitation progress could be considered by the Court of Criminal Appeal in the absence of demonstrated error below

Decision

Adams J reviewed each of the seven grounds raised by the applicant and found no error in the sentence imposed by Coorey DCJ. The sentencing judge had already taken into account the applicant's first-time imprisonment, her compliance on bail, her early guilty plea, the impact on her children, and her tragic upbringing. Each of these matters was expressly reflected in what Adams J described as a sentence that would have been "inappropriately lenient" but for the weight of those mitigating factors.

On the question of the Crown's indication at sentencing that it would appeal any non-custodial sentence, Adams J held that this raised no error. A non-custodial sentence would, in the circumstances, have fallen outside the available sentencing discretion and been appealably wrong. The sentencing judge's decision to impose a custodial sentence rather than invite an appeal was described as an appropriate exercise of judgment.

Regarding the applicant's post-sentence rehabilitation, including drug and alcohol counselling, clean urine tests, and approval for minimum security placement, Adams J acknowledged these achievements as genuinely encouraging. However, the Court of Criminal Appeal noted it has no power to act on post-sentence developments in the absence of a demonstrated error at first instance. The rehabilitation evidence therefore could not provide a basis for intervention.

Adams J concluded that not only was no error identifiable, but he would not himself have imposed a sentence significantly different from the one challenged. Blanch AJ agreed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in a three-year sentence with a one-year non-parole period for manufacturing 299.6 grams of pseudoephedrine, where the sentencing judge had expressly weighed substantial mitigating factors including the offender's background, guilty plea, and family circumstances.
  • The Court of Criminal Appeal confirmed that it cannot act on post-sentence rehabilitation evidence unless an error at first instance is first established; commendable prison conduct does not, of itself, enliven appellate jurisdiction.
  • A sentencing judge's decision not to impose a non-custodial sentence, where that sentence would plainly have exceeded the available discretion, does not constitute appellate error even if the Crown's stated intention to appeal influenced the timing of proceedings.
  • Where an offence involves a high degree of organisation over a significant period and a potential yield of between 6.5 and 13 kilograms of saleable methylamphetamine, the scale of the operation is a weighty factor in sentencing even where extensive personal mitigation exists.
  • In dismissing the appeal, the Court reaffirmed that appellate sentence review is confined to correcting error; it is not a mechanism for reconsidering whether different weight should have been given to mitigating factors already properly considered below.

Legislation and Cases Referenced

No specific legislation or cases were cited in the text of the judgment provided. The offence carried a maximum penalty of fifteen years' imprisonment. The judgment references the use of a Form 1 procedure (taking into account additional offences at sentencing) and the statutory starting point for calculation of non-parole periods, both of which are governed by NSW sentencing legislation.