Court of Appeal (Qld)|2006-04-07|Before: Jerrard JA, Holmes and McMurdo JJSeparate reasons, for judgment of each member of the Court, Holmes and McMurdo JJ concurring as to, the orders made, Jerrard JA concurring, that the sentence should be reduced but, dissenting as to the appropriate minimum term of imprisonment
Jerrard JA, Holmes and McMurdo JJSeparate reasons, for judgment of each member of the Court, Holmes and McMurdo JJ concurring as to, the orders made
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– APPEAL BYCONVICTED PERSON – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED– GENERALLY – where theapplicant was sentenced for trafficking andpossession –where the applicant’s co-accused relative had assistedpolice– where there was evidence of a risk of harm to theapplicant’s co-accused in prison – where the applicant wasat somerisk of harm in prison – whether there was an error in the exercise of thesentencing discretion. APPEAL AND NEW TRIAL – APPEAL –GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – EVIDENCE NOTAVAILABLEAT HEARING – WHEN ADMISSIBLE – where the applicant wassentenced to imprisonment for trafficking and possession –where there wasevidence of some risk of harm to the applicant in prison – where theapplicant sought to adduce further evidence
of risk to her safety subsequent to
imprisonment – whether the fresh evidence was admissible.
The Queen v Attard, unreported, Helman J, Indictment No 465 of 2000,
29 January 2001, consideredR v Burge [2004] QCA 161
CA No 63 of
2004, 13 May 2004, considered R v Clarke (1996) 90 A Crim R 1
[1996] QCA 474
CA No 393 of 1996, 29 November 1996, consideredR v Duggan
[1996] QCA 218
CA Nos 441 of 1995 and 465 of 1991, 25 June 1996,
consideredR v Grima [2000] QCA 105
CA No 429 of 1999, 30 March 2000,
consideredR v Oldfield [2004] QCA 435
CA No 310 of 2004, 16 November
2004, consideredR v York
ex parte A-G (Qld) [2004] QCA 361, CA No
210 of 2004, 8 October 2004, citedYork v The Queen (2005) 221 ALR
541
(2005) 79 ALJR 1919
[2005] HCA 60
B79 of 2004, 6 October 2005, considered
Judgment (46 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[1] JERRARD JA: In this appeal I have read the reasons for judgment and orders proposed by Holmes J, and respectfully agree that Ms Yates' minimum term in custody should be reduced. I consider that the learned sentencing judge was obliged to make a finding on whether or not the information put before the judge did establish that Ms Yates is at a greater risk of physical harm from other prisoners than an ordinary prisoner in the system, and if so, to declare the extent to which the sentence imposed on her was being mitigated because of that. There certainly had been remarkably little put before the learned sentencing judge to establish that as a fact Ms Yates faced any greater danger at all than any other prisoner.
[3]
[2] The evidence put before this Court did establish a distinct or greater risk of harm faced by Ms Yates; the deficiency in the sentencing process lay in the failure to put any of that before the learned judge, not in the sentence the judge imposed on the material actually presented. This Court having received, in the overall interests of justice and the protection of the person of Ms Yates, further evidence on appeal, of which some could be described as fresh, is obliged to reflect the thrust of that evidence in the sentence now imposed. Because, as the Crown conceded on the evidence led on the appeal, Ms Yates faces both a greater risk of harm than an ordinary person and the extra burden of the fear of it, I would have reduced the actual time in custody to a sentence of six months. That is because the increased risk Ms Yates faces does not diminish as time passes in custody.
[4]
[3] HOLMES J: The applicant for leave to appeal, Sarah Yates, was convicted on her own pleas of guilty of one count of trafficking in cannabis and methylamphetamine between 17 November 1999 and 18 April 2000, three counts of supply of methylamphetamine, one count of supply of heroin, one count of possession of methylamphetamine, one count of possession of lysergide and one count of possession of cannabis. At the same time, she was dealt with on a summary charge of possession of tainted property, a motor vehicle. In respect of the indictment counts, she was sentenced to four and a half years imprisonment suspended after a period of 15 months with an operational period of five years, with no further penalty imposed in respect of the summary offence. That sentence was imposed on 27 February 2006; the appeal was given an expedited hearing on 3 March.
[5]
[4] At the sentence an agreed schedule of transactions was tendered, showing that a covert police operative had purchased large amounts of drugs including cannabis sativa, methylamphetamine and heroin from the applicant and her mother, Gloria York, between 29 October 1999 and 26 May 2000. There seems no doubt that the prime mover in the trafficking was Gloria York. The police operative's first encounter with the applicant was on 17 December 1999, when he went by arrangement to Mrs York's house to obtain methylamphetamine. The applicant was present and fell into conversation with him about drugs; she said her customers had a preference for Mrs York's product, because she was selling it pure. The operative watched while the applicant weighed what appeared to be cannabis into 8 or 10 plastic bags.
[6]
[5] On 12 January 2000 the covert police operative dealt with the applicant, who by prior arrangement was acting on Mrs York's behalf. He gave her $3,200 in exchange for some 25 grams of substance, which proved to contain 3.93 grams of methylamphetamine. In the course of their conversation he asked her how much she charged for cannabis. She told him her price and advised him to call her if she wanted some. He saw her at Mrs York's house again on a later occasion that January, and once again in March.
[7]
[6] In April 2000, the applicant seems to have been managing the business on her mother's behalf while the latter was away. On 16 April 2000 the operative went to Mrs York's house where the applicant sold him 3 grams of white powder (on analysis, 1.739 grams of heroin) for $1,350 and 6.137 grams of substance (3.194 grams of methylamphetamine) for $800. Another $200 was paid later in respect of the latter transaction. He also saw the applicant weigh half an ounce of cannabis and sell it to another customer. She spoke to the operative of a $3,000 drug debt she was owed; told him her mother had a new source of amphetamine which her, the applicant's, customers were happy with; and said that she on-sold "eight-balls" provided by her mother, at a profit of about $100 each. On 18 April the operative met the applicant again at Mrs York's house, where she sold him 28 grams of substance, analysed to contain 14.489 grams of methylamphetamine, for $3,200. He witnessed a transaction in which she was paid $1,000 for cannabis previously purchased, and saw her give another person a foil and a clip seal bag to be delivered. On that occasion the applicant told him she had buried $50,000 in notes on Mrs York's behalf.
[8]
[7] On the operative's return to Mrs York's house on 24 April 2000, he found both Mrs York and the applicant there. The two women discussed drug deals that the applicant had undertaken for Mrs York in her absence and counted large amounts of money. The applicant added numbers on a list containing names and sums of money, and indicated that she had made $118,250 from selling drugs while Mrs York was away. In the applicant's presence, the operative bought heroin, methylamphetamine, LSD and cannabis from Mrs York for a total of $51,400.
[9]
[8] The undercover operation appears to have come to an end in May 2000. In all, the operative had paid the applicant $7,200 for 60.179 grams of substance which was 21.91 grams pure of methylamphetamine, and $1,350 for 3 grams of powder which was 1.739 grams pure of heroin. And of course she had, on her own statement, sold $118,250 worth of drugs during her mother's absence. On a search of the applicant's premises on 26 May 2000, small amounts of methylamphetamine and lysergide and 61 grams of cannabis sativa were found.
[10]
[9] The applicant had a minor criminal history. On three occasions she had been convicted of possessing dangerous drugs in the Magistrates Court, and in each instance fined. Those offences were committed in 2002, after the matters the subject of indictment, but while she was on bail for them.
[11]
[10] A report from Dr Curtis, a psychiatrist, was tendered on the sentence. It was dated 9 February 2004 and described the applicant as presenting with a borderline personality disorder and a generalised anxiety disorder. She had given, Dr Curtis said, a history of past methylamphetamine use and dependence on cannabis. That report was updated for the sentence by a letter from Dr Curtis confirming that the applicant's psychopathology remained the same, although she appeared now to be drug-abstinent.
[12]
[11] Also tendered on sentence was an affidavit of Mrs York's solicitor, Mr Michael Bosscher, sworn on 18 June 2004 for the purposes of Mrs York's sentence. In that affidavit Mr Bosscher deposed to having been told by an employee of the Department of Corrective Services working in the Intelligence Unit that Mrs York was at risk of harm, if incarcerated at the Brisbane Women's Correctional Centre, from a Mr Lace who had female associates there. It seems that Mrs York had assisted police in an investigation of Mr Lace's responsibility for a murder and had given evidence in his trial, which resulted in his conviction. The affidavit contains this paragraph:
[13]
"Mr Wildin informed me, and I verily believe, that the Department of Corrective Services Intelligence Unit believes that not only is Gloria York at risk from members of the prison community but also anybody associated with her is at risk."
[14]
[12] Mrs York had been sentenced by Justice Atkinson to five years imprisonment suspended in whole because of her assistance in the matter referred to and what Justice Atkinson described as a "very high risk of extreme retributive violence". The Crown succeeded on an appeal to this Court against that sentence,[1] a majority of the Court finding that the offences were so serious that, notwithstanding the co-operation, the plea of guilty, and the threat directed at her, Mrs York was required to serve an actual term of imprisonment of two years of the suspended sentence. However on further appeal to the High Court[2] that result was overturned, the Court holding that the sentencing judge was entitled to take into account the grave risk to Mrs York in determining what sentence should be imposed. McHugh J observed that the weight of that factor, that is the risk of being killed or injured while in jail, depended "on all the circumstances of the case including the likelihood of its occurrence".[3]
[15]
[13] Counsel for the Crown at the applicant's sentence contended that she should not get "the benefit of what her mother did", since she had nothing to do with it. To that submission his Honour responded, "there is the evidence of the possibility of harm of course"; an allusion, one assumes, to what was said in Mr Bosscher's affidavit.
[16]
[14] In his submissions, defence counsel at sentence, Mr Kimmins, drew comparisons and contrasts between the applicant's situation and Mrs York's. He pointed out that the applicant's relatively brief criminal history post-dated the offending and was to be contrasted with the extensive criminal history of Mrs York. The applicant was 25 at the time, her mother 52, and in what was said to be in a dominant position in respect of her. The amount of drugs in which Mrs York had trafficked was much more substantial. It was submitted that the applicant would be open to retribution by other prisoners and that the threats to her were equal to those to her mother. In addition, in her favour, she was no longer taking drugs, had an offer of a part-time job and was bringing up two children aged 11 and 7 alone, with some assistance from her mother. She had pleaded guilty; the Crown accepted that the delay of six years before sentence was not her doing.
[17]
[15] The learned judge commenced his remarks on sentencing by considering the applicant's antecedents and setting out in brief the circumstances of the counts on the indictment. He noted counsel's submissions, including defence counsel's submission that the risk factor which had led to the suspension of Mrs York's sentence applied equally to the applicant. He adverted also to Dr Curtis' report, finding that the applicant's mental state made her susceptible to falling in with her mother's unlawful activities, although not coerced to do so. Having referred to the seriousness of the offences, he went on to say this:
[18]
"I take into account also your early plea of guilty and the matters which Mr Kimmins has urged on your behalf. It is correct, as he submits, that your situation is quite different to that of your mother, in so far as the term of any sentence is imposed. You do not have the benefit of the matters that Mr Goodwin took me to in the High Court decision in York v The Queen. It was essentially those matters, it seems to me, which led the learned sentencing Judge in this case to take the extremely unusual step of wholly suspending the sentence."
[19]
Error in the exercise of the sentencing discretion
[20]
[16] I do not consider that the learned sentencing judge was obliged to give great weight to what was contained in Mr Bosscher's affidavit. The risk assessment in respect of Mrs York was undertaken in June 2004 and was based on Lace's connections with "female associates" at the Brisbane Women's Correctional Centre. There is no direct reference in the affidavit to any risk to the applicant, and the expression "anybody associated with her" is ambiguous. In the absence of any information as to whether Lace maintained any contacts at the Brisbane Women's Correctional Centre it is impossible to tell from that material what level of risk would presently exist to Mrs York, let alone to the applicant. Nothing was put before the Court to illuminate that question.
[21]
[17] The proposition that the applicant should, on the strength of that material, have been regarded as being in precisely the same position of risk as her mother was patently absurd. However, the prospect that the applicant was at some risk because of Mrs York's co-operation could not entirely be discounted; and it was also relevant to consider that any period of imprisonment was likely to be more burdensome because of those concerns about the applicant's safety. Counsel for the Crown argued here that it ought to be concluded that the learned sentencing judge had taken into account the risk that the applicant faced; that was to be inferred from his reference, during submissions, to the "evidence of the possibility of harm", from his allusion to having taken into account Mr Kimmins' submissions, and from his suspension of the sentence at a relatively early point.
[22]
[18] But it is difficult to reconcile such an inference with the learned sentencing judge's express statement, in the passage quoted above, that the applicant did not "have the benefit of the matters ... in York v The Queen", which had led to suspension of sentence in that case. That could only be a reference to Mrs York's extensive co-operation and the resulting risk to her safety; and in that remark he seems to have dismissed risk to the applicant as relevant in sentencing her. The failure to make any allowance for this aspect seems to me, with respect, to amount to an error in the exercise of the learned judge's sentencing discretion. For that reason I would give leave to appeal, allow the appeal and exercise the sentencing discretion afresh.
[23]
[19] The applicant sought to supplement the evidence in this Court in various ways. The applicant was called to swear the correctness of an unsigned statement taken by her solicitor, the salient parts of which dealt with her reception and treatment at the Brisbane Women's Correctional Centre. In summary, the applicant said in the statement that because she had expressed concerns as to her safety, even in protection, she had been placed in the detention unit at the jail. When she was moved about the prison the walkways were locked off to ensure that other prisoners did not come into contact with her. Her cell had a window from which she could see other prisoners' cells. She had seen another prisoner (whom I will refer to as Ms B) whom she believed to be the granddaughter of a woman with whom she had had an altercation some years prior. She believed both women to be associates of another former prisoner, a woman whom I will refer to as Ms C, who had been in a relationship with Mr Lace. The applicant was afraid that other prisoners would discover her identity and was concerned as to what would happen when she was released from the detention unit.
[24]
[20] In cross-examination the applicant expanded on some of those matters. About six years previously, Ms B's grandmother had accused the applicant of being a user of heroin and amphetamines; they had had a brief physical altercation; she had not seen her since. She believed she had heard Ms B asking a prison officer for Mr Lace's postal address (although in what terms was not made clear) and that was a concern because of Ms B's relationship with Ms C. Ms C had stayed at Mrs York's house some years ago, and another resident there had told the applicant that Ms C had been writing to Mr Lace. However the applicant accepted that Ms C had, like Mrs York, given evidence against Mr Lace and that any correspondence between them must have pre-dated her becoming a Crown witness against him.
[25]
[21] By way of other concerns, the applicant claimed that some years previously, in the context of assisting in the Lace case, her mother had received a threat that her family would be "crippled" (although this was a matter not mentioned at her sentence.) One of the applicant's male friends who had been imprisoned in 2000 or 2001 had been assaulted by some men who, he told her, had been sent by Mr Lace. As to her present circumstances, other inmates had expressed interest in why she was in the detention unit; she remained silent when they asked her. She had been labelled a "dog".
[26]
[22] In addition to the applicant's evidence, her counsel tendered a letter dated 24 February 2006 from the Executive Director, Custodial Operations, Department of Corrective Services. That letter had been received by the applicant's solicitors on the day of her sentence but, through inadvertence, which it is not necessary to detail, had not made its way to the court in time to be tendered on sentence. The letter advised that the Department had carried out a risk assessment of potential threats to the applicant; because the information it contained was "sensitive and confidential" it could not be provided. The letter advised of various means available to ensure prisoner safety: placement on protection; short-term use of the detention unit facility, euphemistically referred to in the legislation as a "special treatment order"; assessment on admission; secure transport; escorted movements about the correctional centre; and identification of a unit whose prisoners presented no concern to the applicant, into which she could be gradually integrated.
[27]
[23] The applicant's counsel provided the Court with a schedule of sentencing for trafficking offences. In the first of the cases cited, R v Clarke,[4] the Attorney-General appealed against a sentence of imprisonment of five years wholly suspended. The applicant, who was 24 years old with a five year old son, had trafficked in heroin and cannabis over a seven month period in order to support her own addiction. She had one previous conviction for possession of cannabis. She had pleaded not guilty to the trafficking charge but guilty to other counts of supplying heroin and cannabis. The Court rejected a view taken by the sentencing judge that the applicant should be regarded as under the domination of her de facto husband and thus having little responsibility for her offending. The fact that the applicant there had a child, while of importance, the Court said, did not mean that a non-custodial sentence was mandated. A factor in the applicant's favour was her success in ending her addiction. The Court substituted a sentence of five years imprisonment with a recommendation for eligibility for parole after 18 months.
[28]
[24] The second of the cases on the schedule was The Queen v Attard[5] which was not a decision on appeal but a sentence imposed by Helman J. The prisoner there had been charged with trafficking a variety of drugs: cocaine, methylamphetamine, MDMA, and gammahydroxybutyric acid. He had no prior convictions and there seem to have been adverse circumstances involving his health, family and events in his life which are not set out in the sentencing remarks. Those matters, in the view of the learned sentencing judge were such as to attract leniency, as was his early plea of guilty. He was sentenced to five years imprisonment with a recommendation for eligibility for parole after 18 months.
[29]
[25] The third of the matters on the schedule, R v Oldfield,[6] was also relied on by the Crown. In that case the applicant for leave to appeal, a 28-year-old with a minor criminal history, had been involved in six supplies of methylamphetamine and methylenedioxymethamphetamine to an undercover police operative over a two and a half month period. The operative had paid $7,260 for 0.975 grams of methylamphetamine and 19.428 grams of methylenedioxymethamphetamine. (Methylamphetamine was a Schedule 1 drug at the relevant time.) The applicant, who pleaded guilty to trafficking, was a user of amphetamines but had managed to cease using drugs before sentence. She was the sole parent of a 9-year-old daughter. Against her was the fact that she was on probation at the relevant times. A sentence of five years imprisonment with a recommendation for parole after two years was held not to be manifestly excessive.
[30]
[26] In R v Duggan,[7] the fourth matter on the schedule, the applicant had pleaded guilty, after an unfavourable ruling, to trafficking in and supply of methylamphetamine and cannabis sativa, and one count of supply of cocaine. The trafficking period was some five months. Methylamphetamine was at the time a Schedule 2 drug. The applicant had no prior convictions and a good work record. His appeal against a sentence of 4 years imprisonment was dismissed.
[31]
[27] R v Grima,[8] the fifth matter on the schedule, was, like Duggan and Oldfield, an application for leave to appeal against sentence. The applicant had been sentenced on his own plea of guilty to four years imprisonment for trafficking in methylamphetamine (then a Schedule 2 drug) over a six week period. He was not an addict, and had undertaken the trafficking at a time when he was under considerable financial pressure from business difficulties. His prior work history was good and he had no previous criminal convictions. The issue on appeal was whether a recommendation as to parole ought to have been made; the Court of Appeal held that the sentence was not manifestly excessive despite the absence of any such recommendation.
[32]
[28] The last of the matters on the schedule is that of R v Burge.[9] The applicant had pleaded guilty to trafficking in methylamphetamine (a Schedule 1 drug) over an 11 month period and was sentenced to three years imprisonment, suspended after 18 months. The trafficking had been committed when she was between 18 and 19 years old, while she was dependent on amphetamines and living in a de facto relationship with her supplier. Her role was to take phone calls and make arrangements on her de facto husband's behalf in order for him to sell the drugs. The Court of Appeal described her role as "ancillary or supportive" but not minor. The de facto husband was said to be violent and abusive of her, and the applicant had had difficulty extricating herself from the relationship. She had suffered from amphetamine psychosis. The applicant had no criminal history prior to the charge that had led to her sentencing; it was an early plea of guilty; and she had co-operated with the police in implicating her de facto husband in the trafficking. Having regard to all of those factors, the Court of Appeal set aside the sentence and substituted a sentence of three years imprisonment suspended after nine months.
[33]
[29] It was contended for the applicant here that, given she was merely a party to her mother's trafficking, the appropriate head sentence was one of three years imprisonment. The mitigating factors - her lack of prior convictions, her mother's dominance and the age difference between them, her early plea of guilty, a delay of six years in having the matter dealt with, her prior good character, her role as the sole carer for her children, the future offer of employment, her psychiatric condition, her having overcome a drug addiction - should ordinarily have led to a suspension after approximately six months. But, it was argued, the risk the applicant faced, added to those other matters, was such as to make it realistic to suspend the sentence in whole. In any event, the risk ought to be taken into account in considering the nature of any time the applicant would have to serve.
[34]
[30] I do not think that the head sentence of four and a half years imprisonment was excessive, when one has regard to the cases on the tendered schedule. The status of methylamphetamine as a Schedule 2 drug in this case is of some significance, but it is undercut somewhat by the fact that heroin was also supplied. In addition to the amounts of drugs actually sold by the applicant to the covert police operative, one has the further information that she had undertaken $118,250 worth of supplies in her mother's absence, which adds an extra dimension to the trafficking. Although it was said that the applicant was merely a party in respect of the relevant transactions, working not for herself but in a larger enterprise run by her mother, I have difficulty seeing that that improves matters significantly. This was not some incidental involvement; she was acting as her mother's agent in various transactions, demonstrating in conversation a knowledge of her mother's larger dealings. And it seems that she had sufficient initiative to run a smaller business at the fringes of her mother's enterprise, with customers of her own.
[35]
[31] As to the time actually to be served, the mitigating factors advanced at sentence were of varying potency. While it was a plea of guilty, there was no element of the co-operation which existed in Mrs York's case. The offer of employment was said to be part-time landscaping in a context in which the applicant had no previous work history at all. Taken with the condition referred to by Dr Curtis, and the applicant's role as a parent, it would be difficult to argue with suspension of the sentence after 15 months.
[36]
[32] But in re-sentencing the applicant, it is appropriate to take into account the evidence which was tendered and given on this appeal. I would accept that the applicant has real concerns for her safety and that the Corrective Services Department is acting on those concerns in managing her custody. While I regard the sources of threat identified by the applicant, that is, Ms B, her grandmother and Ms C, as being rather remote prospects of harm to the applicant, particularly given Ms C's role in giving evidence against Mr Lace, I accept that there is some level of risk that the applicant will be harmed in the prison system by another prisoner knowing of her mother's background. I accept therefore that the applicant is at a greater risk of harm - as McMurdo J put it during argument, a "distinct risk" - than an ordinary prisoner in the system, and will have to serve her sentence in more stressful circumstances as a result. That risk, vague though it is, to the applicant's safety, with its implications for the way in which her period of imprisonment is likely to be served, warrants a further reduction in the period of actual custody.
[37]
[33] I would grant leave to appeal and would vary the sentence by leaving in place the head sentence of four and a half years, but ordering that it be suspended after the applicant has served nine months imprisonment. The operational period of five years should remain unchanged.
[38]
[34] McMURDO J: I agree with the reasons of Holmes J and with the orders proposed by her.