Regina v Adam Maxwell Cook [2002] NSWCCA 216

New South Wales Court of Criminal Appeal

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 McGuire DCJ OFFICER :

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" Criminal Appeal Act LEGISLATION CITED : 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.

IN THE COURT OF CRIMINAL APPEAL 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: