New South Wales Court of Criminal Appeal CITATION : REGINA v COOK [2002] NSWCCA 240 FILE NUMBER(S) : CCA 60882/01 HEARING DATE(S) : 12 June 2002 JUDGMENT DATE : 12 June 2002 Regina PARTIES : v Charlinn McCulloch Cook JUDGMENT OF : Adams J at 1; Blanch AJ at 15 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0276 LOWER COURT JUDICIAL Coorey DCJ OFFICER : COUNSEL : Applicant in person D Woodburne (Crown) SOLICITORS : Applicant in person S E O'Connor (Crown) DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60862/01 ADAMS J BLANCH J WEDNESDAY 12 JUNE 2002 REGINA v CHARLINN McCULLOCH COOK JUDGMENT 1 ADAMS J: This is an application by Charlinn McCulloch Cook for leave to appeal against a sentence imposed on her in the District Court at Parramatta on 15 November 2001 by Coorey DCJ. Ms McCulloch Cook appears unrepresented and has made some brief but pointed submissions in writing to the court. She relies on those submissions for the purpose of arguing her case. Written submissions have also been made by the Crown. In accordance with the usual practice those submissions have been provided to the applicant who has decided that she does not need to add to the written submissions already filed. 2 The applicant pleaded guilty to an offence on indictment as follows: "On or about 22 January 2000 at Prospect in the State of New South Wales [she] did knowingly take part in the manufacture of an amount of a prohibited drug to wit pseudoephedrine 299.6 grams". 3 The circumstances giving rise to this charge were that on 22 January 2000 the police attended premises located at 14 Deodar Way, Prospect armed with a search warrant. After identifying themselves to the occupants who would not open the door, police removed the mesh from a security screen and then entered the house. Once inside the kitchen area the officers saw a four-gallon mineral spirits drum, a large garbage bag containing empty Sudafed blister packets and inside a cupboard a glass container with a white and clear substance in it. 4 In the main bedroom the police found a resealable bag containing a quantity of cannabis leaf, a resealable bag containing a methylamphetamine, a paper bag containing a quantity of pseudoephedrine and two sets of scales. Analysis revealed that the bags contained 5.8 grams of cannabis leaf and 32.3 grams of eight percent pure amphetamine. These offences were placed on a Form 1, which his Honour was asked to and did take into account in sentencing the applicant on the charge contained in the indictment. 5 The quantity of pseudoephedrine (9 grams of 54.5 percent purity) is included in the total weight of pseudoephedrine alleged in the substantive charge. 6 In the kitchen the police found an estimated total of ten thousand six hundred and thirty seven Sudafed tablets weighing 2.534 kilograms, a twenty litre drum of methylated spirits, five Pyrex beakers containing a white sludge and a clear liquid, traces of pseudoephedrine on a cutting board, a spoon, two baking dishes, a hot plate, three scrapers and an exhaust fan and two paper bags containing a total of 263.1 grams of pseudoephedrine (89 grams of 65 percent purity and 174.1 grams of 63 percent purity). 7 In total, police located 299.6 grams of pseudoephedrine either in powder form (totalling 272.1 grams) or as part of white sediment (totalling 27.5 grams). In making this calculation the weight of the solution from which the sediments had formed and the quantity of pseudoephedrine still contained in the 10,637 Sudafed tablets had not been included. 8 The evidence before his Honour showed that Sudafed tablets contain pseudoephedrine hydrochloride, which may be readily extracted when mixed with alcohol such as methylated spirits. The white sludge that forms may be separated away from the liquid by decanting and evaporation and may then be used in the manufacture of methylamphetamine. Taking into account the usual street purity of methylamphetamine, 10,637 Sudafed tablets would produce between 6.5 and 13 kilograms of saleable methylamphetamine. 9 By any scale the operation that was taking place in the premises and which involved the applicant was significant showing a high degree of organisation going for a significant length of time. 10 The maximum term of imprisonment for the offence is fifteen years and, as I have mentioned, the offender had the advantage of his Honour taking into account deemed supply of 32.3 grams of methylamphetamine and possession of 5.8 grams of cannabis leaf. 11 His Honour's judgment refers to evidence which was tendered on the plea relating to the most unfortunate upbringing and background of the applicant and I do not think it is necessary for me to set out in detail for the present purposes. His Honour described it as "tragic" and added, "In a sense life has been very difficult for her from the time of her childhood". His Honour accepted that the applicant never knew her natural father, and her mother and step father were both heroin users and were jailed while she was only a young child. Her stepfather died three years before the sentence from liver and kidney failure related to heroin use. The offender had to be a mother as best she could for herself and her siblings as her own mother's life was chaotic and she was often unavailable. Two of the applicant's aunts were drug users and have both died of AIDS related illnesses. His Honour remarked, "it is a real tragedy that the offender is herself somewhat trapped as a drug user". Furthermore, the offender has five children ranging in age from two to seventeen years. Not only have they suffered enormously from being separated from her but she also undoubtedly suffers significantly because she is herself separated from them and is unable to care for them. She says, and I am willing to accept, that her youngest child has had behavioural problems since his mother has been incarcerated. His Honour took all these matters into account and found that there were special circumstances justifying a departure from the statutory starting point for calculation of the non-parole period. 12 Indeed, it is obvious from the sentence that his Honour imposed of three years with a non-parole period of one year that he was much affected by this material, since otherwise it seems to me that sentence would have been inappropriately lenient. I have been unable to identify any error into which his Honour fell. However, I should mention specifically the matters raised by the applicant in her written submission: Ground 1 "This is my first time in prison and to date I have served half of the given non-parole period. Whilst on bail for these charges (a period of eighteen months) I regularly reported to the local police station and did not re offend whilst on bail". As to this ground, his Honour took into account, as I understand it, the fact that the sentence he imposed would have represented the applicant's first time in prison and also that whilst on bail she had not committed any other offences. Ground2 "I pleaded guilty at the first available opportunity" His Honour gave the applicant full credit for having pleaded guilty at the first available opportunity. 13 Ground 3 "As a mother to five children, ages from 2 years to 17 years, they have suffered enormously from being separated from me and desperately need me at home. I have never before been away from them and my youngest child has had considerable behavioural problems since my incarceration" His Honour took into account the hardship caused both to the applicant and to her children by virtue of the separation which imprisonment entailed. Ground 4 "During my incarceration I have regularly attended drug and alcohol, psychology and welfare counselling. I have returned regular clean urine analysis test. I have obtained various achievement awards and have been approved to go to Jacaranda (The Day and Works Release section of the Minimum Security Prison) at the end of May". As to this matter, it is indeed heartening to see that the applicant has made very substantial steps towards rehabilitation and the promise for returning to a life which is personally rewarding for her and in which she can put her past behind her is high. However, this Court is unable to take these matters into account unless some error in the sentence imposed has been demonstrated. Ground 5 "On the day of my sentencing, Judge Coorey stated that he wanted to give me a non custodial sentence, although the prosecution stood up and stated that if he did so then the Crown would appeal that very same day to a higher court. The Judge then adjourned the court for me to decide if I wanted to be sentenced then and there rather than at a later date. Due to my matter having gone on for the previous eighteen months I said that I would have it dealt with that day. Therefore I feel the judge would have given me a non custodial sentence especially due to all my special circumstances, although he didn't because of not wanting to do a single 'disservice to me' because of the Crown appealing" The short answer to this complaint is that, if his Honour had given the applicant a non-custodial sentence that would plainly have fallen outside his sentencing discretion in the circumstances of this case and would have been appealably wrong. In that event, to have sentenced the applicant as he did and thus avoid the need for a reconsideration by this court was to apply an appropriate judgment to the circumstances. Ground 6 "I feel that due to my abstinence of drug use I would now be suitable for periodic detention or home detention and ask that the remaining six months of my custodial sentence be done by way of home detention or periodic detention". The applicant's abstinence from drug use is something for which she has to be commended and is one of those matters which gives hope of effective rehabilitation, but as I have said, this is not a matter which this Court can take into account. Ground 7 "As I have no legal representation and due to having no access to any law reports or any other comparative sentencing cases or legal books I cannot site any other cases or make any submission on actual case law". It seems to me that the applicant has raised every possible matter which might be put into the scales in her favour. However, this Court is not one which imposes sentences on its own initiative. We can only impose a sentence if error at first instance is demonstrated. I should hasten to add, however, not only do I see that there is no error at first instance but, for myself, I would not have given a sentence significantly different from that which was imposed. 14 For these reasons, accordingly, I would grant the applicant leave to appeal but would dismiss the appeal. 15 BLANCH J: I agree. 16 ADAMS J: The order of the court, therefore, is that the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.