Debra Janet Rickwood v The Queen Javier Francisco Gomez v The Queen [1982] FCA 73

during that period of two years and three months she be subject to the supervision on probation of the Director of Welfare of the Australian Capital Territory or such person as he may from time to

she obey all reasonable directions of the said Director or any person

she advise the said Director of Welfare of the Australian Capital Territory of any change in her address or occupation within seven

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN : DEBRA JANET RICKWOOD Appellant AND: THE QUEEN Respondent

The appellant was sentenced by the Supreme Court of the Australian Capital Territory to three years imprisonment with a non-parole period of eighteen months after pleading guilty to a charge under s.4(3) of the Poisons and Narcotic Drug Ordinance 1978 (the "Ordinance") of possessing heroin for the purpose of supplying it to another person. She had acted in concert with one Javier Francisco Gomez in obtaining heroin from one Bozo Jurkovic for that purpose. Jurkovic, charged with a similar

offence as well as with administering heroin to himself,

pleaded guilty to both charges and was sentenced to five years imprisonment with a non-parole period of two and a half years on the charge of possession and to imprison- ment for one year, to be served concurrently, on the

charge of administering the drug to himself. Gomez, charged with a similar offence, also plcaded guilty and was sentenced to four years imprisonment with a non-parole

Jurkovic appealed against sentence to this Court. For the reasons set out in the leading judgment delivered on 23 December 1981 by Fox J the appeal was allowed and a sentence of four years with a non-parole period of twenty-one months was substituted for that imposed by the learned sentencing Judge. There is no need for us to repeat the discussion and reasons, in which we all agreed, contained in his Honour's judgment in that case. They should be treated as being incorporated into

'In the present case, we do not think that the head sentence imposed by the learned sentencing Judge was, in the circumstances, excessive or unduly severe. Indeed, we think that, having regard to all the circumstances of the offence and the appellant's background, it was an entirely proper sentence. The appellant had had no prior convictions but we do not think it proper, for the reasons given in Jurkovic's case, to ignore the fact that she had

We also think that the sentence imposed was adequately retributive and that it was of such a nature

It is in its reformative aspect that, in our view, his Honour's sentence was excessive. In the

"In forming its assessment the Court will take account of long term as well as short term considerations. Reform or improvement while imprisoned is important for the sake of both the country and the individual."

Upon her arrest on 4 December 1980, the appellant immediately ceased taking drugs and has not taken any since. She continued her studies, demonstrating a Capacity to take an honours degree and the potential to attain her goal of graduating eventually as a Doctor of Philosophy. She has, while imprisoned, continued her studies although, not surprisingly, she has not obtained the results which might have been expected, given her high intelligence and obvious capacity for work. She is presently attending the University of New South Wales on what appears to be a type of work-release programme with considerable restriction of her freedom of movement and association. We note that, having once in the past stopped using drugs, she subsequently relapsed into taking them. The evidence demonstrates however a sustained and

the learned sentencing Judge failed to take into account

fully the appellant's efforts to reform and the need for care and assistance, in a non-custodial atmosphere, if a relapse is to be avoided. The non-parole period fixed would, as we understand it, have meant her release at a time not far short of that when, with remissions, she might have been released completely in any event and we con- sider that in all the circumstances it should be shortened. The non-parole period fixed demonstrates that degree of error which, in our view, permits an appellate Court to intervene to vary the sentence imposed. It is appropriate, too, to use the flexible provisions contained in s.556B

of the Crimes Act 1900 (as amended) of the State of New South Wales in its application to the Territory. We are concerned particularly that the appellant should have support in her efforts to rehabilitate herself, the more so since she has demonstrated once that in appropriate circum-

We propose to confirm the sentence of three years imprisonment but to vary the rest of the order made

We indicated at the conclusion of the hearing that we propose to order that the sentence be

suspended from a time about nine months after its commence-

ment, subject to conditiomsnot thon Formulated. Those oe a Puthis. BA et the 3 conditions are now formlbtee tiftre GrdSt which we makes ane preceding p-.6S area. >? Cop

1 2 32% Honours Reasons "ov Juasment here.1 of bes Honou Mr. Jusvices Fox, Kelly anel Ellicott

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JAVIER FRANCISCO GOMEZ Appellant AND: THE QUEEN Respondent ORDER

2. Otherwise the appeal he allowed and the fixing a non-parole period of two years aside.

recognizance in the sum of $250 with one surety of the same amount, the recognizance

(a) he be of good behaviour for a period of two years and nine

(b) during that period of two years and nine months he be subject to the supervision on probation under the Director of Welfare of the Australian Capital Territory or such person as he may from time to

(c) he obey all reasonable directions of the said Director or any person

(d) he advise the said Director of Welfare of the Australian Capital Territory of any change in his address or occupation within seven

The mattcr be remitted to the Supreme Court for the execution of these orders. The recognizance may be taken before a Justice of the Peace

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JAVIER FRANCISCO GOMEZ Appellant AND: THE QUEEN Respondent

The appellant was sentenced on 14 August 1981 by the Supreme Court of the Australian Capital Territory to four years imprisonment with a non-parole period of two years after pleading guilty to a charge under s.4(3) of the Poisons and Narcotic Drug Ordinance 1978 (the "Ordinance") of possessing heroin for the purpose of supplying it to another person. There were two others involved in the incidents out of which the charge arose.

One, Bozo Jurkovic, charged with a similar offence as well

as with administering heroin to himself, pleaded guilty to both charges and was sentenced to five years imprison- ment with a non-parole period of two and a half years on the charge of possession and to jmprisonment for one year, to be served concurrently, on the charge of administering the drug to himself. The other, Debra Janet Rickwood, also charged with a similar offence, pleaded guilty and was sentenced to three years imprisonment with a non-parole period of eighteen months. Both Jurkovic and Rickwood appealed against sentence to this Court. For the outcome of those appcals reference is made to the reasons for

judgment delivered this day in respect of the appcal by

The appellant made an application for leave to appeal out of time. The Crown did not oppose the

We do not think the head sentence imposed by the learned sentencing Judge was in any way excessive or unduly severe when regard is had to all the circumstances of the offence and the past record of the appellant. We think that the sentence dealt adequately with the retributive

However, the evidence given on behalf of the appellant in the Supreme Court of the Australian Capital Territory, which was not challenged, shows an impressive

attempt on his part to reform, It demonstrates an unusual

concern for others. It demonstrates, too, a capacity

for higher education. We are satisfied, in the light of this evidence, that the reformative aspect of sentencing should in the circumstances have played a larger part

than it did in the Supreme Court. We think it appropriate in this case, as in the case of Rickwood, that use be made of the flexible provisions contained in s.556B of the

Crimes Act 1900 (as amended) of the State of New South

We propose to confirm the sentence of four years imprisonment but to vary the rest of the order made by the learned sentencing Judge. We think it appropriate that the appellant be released after serving a period of fifteen months provided he enters into an appropriatcly conditioned recognizance to be of good bchaviour for a period of two years and nine months. This will have the effect of enabling him to be relcased at a time when he can make adequate unhurried preparation to continue his