R v Cottle-Pilides [2006] QCA 72

SUPREME COURT OF QUEENSLAND

CITATION: R v Cottle-Pilides [2006] QCA 72

PARTIES: R v COTTLE-PILIDES, Tovah Ismini (applicant/appellant)

FILE NO/S: CA No 305 of 2005 / SC No 187 of 2005

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 16 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 16 March 2006

JUDGES: McMurdo P, Williams JA and Fryberg J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY - where applicant pleaded guilty to trafficking in, possessing and supplying heroin and possessing items used in connection with trafficking – where applicant was convicted and sentenced to six years' imprisonment with a recommendation for post-prison community based release after two years – where applicant has an extensive and relevant criminal history and a history of drug addiction – where courts have previously given applicant lenient sentences and numerous opportunities to rehabilitate herself - where applicant claims that sentence was manifestly excessive in all the circumstances - whether sentence reflects applicant's mitigating circumstances – whether sentence was manifestly excessive / R v Clarke [1996] QCA 474, applied R v Hammond (1996) 92 A Crim R 450, followed R v Vidler [1997] QCA 393, applied R v Watt [1997] QCA 430, applied R v Woods [1994] QCA 526, distinguished

COUNSEL: C Callaghan for the applicant/appellant C W Heaton for the respondent

SOLICITORS: Callaghan Lawyers for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty on 15 July 2005 to one count of trafficking in heroin between 1 November 2003 and 24 March 2004 (count 1), two counts of possessing heroin (counts 2 and 4), one count of supplying heroin (count 3), one count of possessing a mobile phone and scales used in connection with trafficking (count 5) and one count of possessing mobile phones, scales and freezer bags for use in connection with trafficking (count 6). She was sentenced on 21 October 2005 on count 1 to six years' imprisonment with a recommendation for eligibility for post-prison community-based release after two years and convicted but not further punished in respect of counts 2 to 5 which were committed within the time period encompassed in count 1. She contends the sentence was manifestly excessive and that a sentence of no more than five years' imprisonment suspended after 15 months with an operational period of five years should be substituted.

The applicant was between 25 and 26 at the time of the commission of the offences which occurred between 1 November 2003 and 24 March 2004. She was 27 at sentence. She had a significant and relevant criminal history. In 1999 she was placed on two years' probation in the Brisbane Magistrates Court for drug offences. On 22 June that year she was convicted and fined for unauthorised dealing with shop goods. On 10 September that year in the Brisbane District Court she was sentenced on an assortment of offences including fraud and attempted fraud, robbery with violence and attempted armed robbery to three years' probation with special conditions relating to treatment for drug addiction and to three years' wholly suspended imprisonment. Between that time and 2001 she was convicted of four relatively minor matters in the Magistrates Court. More significantly, in 2002 in the Brisbane District Court she was sentenced to 18 months' probation for stealing. In February 2004 she was convicted and fined $300 for possessing dangerous drugs. In April 2004 she was fined $500 for breaching the probation imposed in April 2002. It follows that she committed these offences very soon after completing the probation imposed in 2002.

From the previous sentencing remarks in the District Court tendered before the primary judge it is clear that the applicant has previously been dealt with leniently by the court because of her drug addiction and has been given a number of opportunities to undertake rehabilitation, all of which have proved unsuccessful.

Count 1 was committed as follows. Mark Ide, the applicant's former de facto and the father of her 5 year old child, was sentenced on 8 December 2004 to seven years' imprisonment with a recommendation for post-prison community-based release eligibility after two years. On 17 March 2004 her visiting rights to him had been suspended because Ide had been found in possession of pills following a visit from the applicant. She nevertheless accompanied a friend who was visiting Ide at the Arthur Gorrie Correctional Centre. Corrective Services staff conducted a search of the vehicle and located a set of scales with white powder residue and the corner of a plastic freezer bag on the ground nearby which ultimately was analysed to contain 1.639 grams of powder of which 0.55 grams was pure heroin. She was charged with count 2.

Police then undertook surveillance of her activities. On 23 March 2004, the date of Ide's committal proceedings, she was detained outside the Magistrates Court and found to be in possession of the cut-off corner of a freezer bag containing 2.476 grams of powder of which 0.787 grams was pure heroin (count 4). Police also located cash, a mobile phone, scales, broken balloons, paperwork and a notebook in her possession. Police answered several calls from customers wanting to purchase drugs (count 5). Police then executed a search warrant of her unit where they found scales with powder residue, powder residue on a table and the floor, freezer bags, syringes, a safety box and alcohol wipes. Two freezer bags with the corners cut off were in a vase in a cupboard under the sink and torn balloons were in a handbag in the laundry. Police found a number of phones and SIM cards (count 6).

Police monitored calls over the following days and recorded conversations with a number of customers wanting to purchase drugs. Police made arrangements to meet with the customers who then provided details of their contact with the applicant. One customer paid between $500 and $700 for small amounts of heroin over a four to five month period. Another estimated purchasing heroin from the applicant on 30 occasions since October 2003. Another said he paid $100 for a quarter of a gram when he purchased heroin from the applicant. The fourth made about 20 such purchases from the applicant although sometimes she was with others. Another user purchased drugs from the applicant at prices ranging from $70 to $100. Telephone records show that her mobile phone averaged 60 calls a day and during March 2004, 80 calls a day. Her landline telephone in March 2004 received 654 calls.

The applicant was committed for trial and pleaded guilty shortly before her trial was to commence. The guilty plea was the extent of her co-operation with the authorities: she declined to be interviewed by police. The Prosecutor submitted at sentence that the appropriate penalty was imprisonment within the range of six to eight years, although mitigating factors in the case placed the matter at the lower end of that range.

A court report dated 26 July 2005 prepared by Community Corrections noted that the applicant during her probation responded well to supervision and the methadone programme, becoming drug-free by early 2003. By July 2003 she had, however, relapsed and again sought treatment with methadone. By the end of one period of probation supervision she had stabilised on a suitable dose of methadone but by the time of the completion of her later probation order she was recovering from a serious car accident, experiencing difficulty with drug addiction and insecurities resulting from the incarceration of her partner. The report noted that the applicant had a supportive mother but that the applicant appeared to lack any depth of insight or motivation to change her lifestyle and associates to prevent relapse and that she may benefit from more intense supervision requirements.

Psychiatrist Dr Ian Curtis examined the applicant on 29 August 2005 and also spoke to her mother. The applicant's counsel, at sentence, tendered his report. Dr Curtis reported that the applicant was born in Cyprus and came to Australia with her mother when she was 12. She was a very shy child. She developed an interest in modelling. In October 2003 she was involved in a car accident which has left her with chronic pelvic pain after she suffered lacerations to the skull and multiple fractures of the pelvis. This exacerbated her drug addiction. At sentence she was on the State registered methadone programme. She is a very severe addict by Australian standards, taking heroin between five and eight times per day by self-injection. She had attempted detoxification using the drugs Naltrexone and Subutex. Her drug addiction commenced with alcohol and cannabis at high school and progressed to using heroin when she left school in grade 11. Her father is a Greek national where he is a surgeon. The applicant feels rejected by him. Her son, who will be six years old this year, is in good health and is currently cared for by the applicant's mother. Dr Curtis diagnosed the applicant with a co-morbid multi-diagnosis of generalised anxiety disorder with actual panic disorder; opiate dependence (addiction of the street heroin and prescribed morphine type); a severe global psycho-pathology with anxious, socially phobic and dependent features; the type of female easily manipulated because she is insecure and drug-addicted, a truly severe addict and a chronic psychiatric invalid. He was of the view that she requires years of specialist care for her psychiatric and drug addiction and psychological counselling for her trust issues and vulnerabilities interpersonally.

Orthopaedic surgeon Dr Greg Gillett examined Ms Cottle's injuries received in the car accident on 11 October 2004. He noted that her fractures have stabilised but she is left with a five per cent impairment from the fracture to the sacrum and the healed fractures of her pelvic ring. She has a three per cent impairment of lower limb function which equates to a one per cent impairment of whole person function.

In recent times the applicant, who is no longer in a relationship with Ide, has successfully taken up Latin dancing. She believes that she has a future as a dance instructor and costume and jewellery designer when she is released from prison. Her counsel at sentence emphasised that her mother remains supportive, as do a number of citizens who provided letters to the sentencing judge to that effect. The applicant's counsel at sentence contended, as does the applicant here, that a five-year term of imprisonment suspended after 15 months was appropriate.

The applicant now contends that the sentencing judge erred in finding that her guilty plea was made "relatively late". The applicant also contends that the judge erred in giving insufficient weight to her pre-existing severe addiction to heroin, her generalised anxiety disorder with actual panic disorder and the rehabilitation she was undertaking.

The learned primary judge noted in his sentencing remarks that the prosecution case was quite strong and that the plea of guilty was relatively late, only after the period originally alleged as the trafficking period was reduced by the prosecution. Nevertheless, from his sentencing remarks, his Honour clearly accepted the Prosecutor's submission that she should be given benefit for her plea of guilty. The judge referred to Dr Curtis' report and stated that he had regard to it. His Honour also noted that the applicant was presently being treated with methadone and in his sentencing comments accepted she had prospects of rehabilitation when released from prison. His Honour advised her that although rehabilitation "may not be easy [she] should make every effort to do so in the interests of having a decent future".

The judge's sentencing remarks plainly suggest that he took into account all the relevant matters before him including the guilty plea, Dr Curtis' report and her attempts at rehabilitation. His Honour has made no error in either regard.

For the applicant to succeed it is necessary for her to demonstrate that the sentence was manifestly excessive in all the circumstances. In support of that contention the application relies on R v Clarke [1996] QCA 474; CA No 393 of 1996, 29 November 1996 where a wholly suspended sentence of five years' imprisonment was overturned on an Attorney-General's appeal and a sentence of five years' imprisonment with a recommendation for parole after 18 months was substituted. Clarke had a much less significant criminal history than this applicant (only one conviction for possession of cannabis) but unlike this applicant Clarke did not have the benefit of the mitigating plea of guilty and Clarke's trafficking appears to have been more serious. Nevertheless, the order in Clarke, which was significantly substituted on an Attorney-General's appeal, does not show that the sentence imposed here was outside the appropriate range; it supports it.

The applicant next relies on R v Woods [1994] QCA 526; CA No 381 of 1994, 2 December 1994 where a sentence of eight years' imprisonment with a recommendation for parole after three and a half years was reduced to four years' imprisonment with a recommendation for parole after one year. Woods trafficked in heroin for only one month during which he sold 5.7 grams with an average purity of 72.6 per cent for $9,865 to an undercover police officer. He was 37 years old. He had some criminal history but it was not as extensive as the applicant's and he had not previously been sentenced to imprisonment. He too was a heroin addict. The evidence before the sentencing court was that Woods had largely successfully rehabilitated himself. Unfortunately the same cannot be presently said about this applicant.

It is difficult, if not impossible, to find closely comparable cases but those to which we have been referred by the respondent of R v Watt [1997] QCA 430; CA No 344 of 1997, 29 October 1997, where a sentence of seven years' imprisonment with a recommendation for parole after two years' imprisonment was found not to be manifestly excessive, and R v Vidler [1997] QCA 393; CA No 329 of 1997, 9 October 1997, where five years' imprisonment with a recommendation for parole eligibility after 18 months was imposed on appeal in less serious circumstances than the present, demonstrate that the sentence imposed here was within the appropriate range.

The maximum penalty is 25 years' imprisonment. As this Court recognised in Hammond (1996) 92 A Crim R 450 at 455 and 467, and in Woods at page 8, the correlation between the applicant's commission of the criminal offences and her drug dependency is a highly relevant factor when determining the appropriate sentence. The sentencing judge recognised that and appears to have accepted her counsel's submission that she should be treated as a user/dealer with no trappings of wealth accumulated from her criminality. He nevertheless considered, and rightly so, that the legislature regards the selling of heroin, even to addicts, as a serious matter. The applicant had a significant criminal history and had been given many past opportunities in which to rehabilitate herself. The insidious nature of heroin addiction, combined with her less than perfect personal circumstances, culminated in the failure of her apparently genuine efforts at rehabilitation. The sentence imposed will give her the opportunity to have lengthy and structured supervision in the community when she is released on parole. Her history suggests she will need every bit of this help and support to succeed in rebuilding her own life and positively participating in her child's future. This support would not be available were she sentenced in the manner sought by her counsel at first instance and again in this Court. The sentencing judge has not erred in any principle in imposing a sentence of six years' imprisonment with a recommendation for parole eligibility after serving one-third of it and nor is that sentence manifestly excessive. It appropriately reflects the mitigating factors to which I have referred. The application for leave to appeal against sentence should be refused.

WILLIAMS JA: The applicant has been previously treated very leniently by the courts. In September 1999 she was sentenced in the District Court after pleading guilty to one count of robbery with actual violence, one count of attempted armed robbery and three fraud-related charges and given a wholly suspended sentence. That sentence would only be supported by taking into consideration her drug dependency and her pregnancy. She breached that sentence by stealing on the 17th of January 2001 and was sentenced for that breach and the stealing offence to 18 months probation including special conditions relating to her drug dependency. That probation period expired in October 2003.

The trafficking and heroin with which the Court is now concerned commenced only one month after that probation period expired. It is also significant, in my view, that she was dealt with in the Magistrates Court on the 19th of February 2004 and convicted of possessing drugs on the 4th of October 2003. Less than a month after appearing in court on that occasion she and the vehicle in which she was travelling were searched by police near the Arthur Gorrie Correctional Centre. On that occasion a set of scales, a plastic freezer bag with some powder in a corner, broken balloons and $1,500 in cash were located. The powder was analysed and was found to contain 1.639 grams of total powder of which .55 grams was heroin.

That offence was count 2 on the current indictment. Significantly, only about a week later the matters giving rise to counts 3, 4 and 5 on the indictment were committed. Given that history and the pattern of sentencing for trafficking and heroin, the sentence here was clearly within range. I agree with all that was said by the President. The application should be refused.

FRYBERG J: I agree with what my colleagues have said. One of the submissions that was made to us was that the judge erred in relation to the question of the timeliness of the applicant's plea of guilty. The timeliness of a plea of guilty is relevant in demonstrating an applicant's willingness to co-operate with the administration of justice. In the present case the applicant was charged on the 23rd of March 2004. She proceeded through committal proceedings, the presentation of an indictment and the listing of the matter for trial. The matter did not turn into a plea until a few days before the trial date when counsel for the applicant approached the prosecutor and the prosecutor amended the indictment to make the commencement date of the alleged trafficking period fall just outside the period of probation to which the applicant had earlier been sentenced. Upon that happening she pleaded guilty.

The judge, in fact, treated that as a timely plea and gave her credit for it. In that regard I think she was conferred a benefit to which she was not entitled. She, in fact, pleaded guilty late. She had from the time she was charged until the time when she, in fact, notified her willingness to plead guilty to an indictment charging amended dates to give that notification. At any time during that period she could have indicated her willingness to co-operate in the administration of justice by telling the prosecution she would plead guilty if the indictment were amended as it was ultimately amended. She did not do so. I do not think that this was, in fact, anything other than a late plea. However, as I have said, the sentencing judge gave her credit for it in any event. I agree with the order proposed.

THE PRESIDENT: The application is dismissed.