SSb IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 75 of 1986 DISTRICT REGISTRY Vee we evevrew GENERAL DIVISION BETWEEN : LEE ERIS CORNFORD Applicant AND: THE QUEEN Respondent MINUTE OF ORDER JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 27 November 1986 WHERE MADE : Canberra THE COURT ORDERS THAT: The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_ THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY No. ACT G 75 of 1986 DISTRICT REGISTRY weer ee GENERAL DIVISION BETWEEN : LEE ERTS CORNFORD Applicant AND: THE QOUREN Respondent CORAM: Neaves J. DATE: 27 November 1986 REASONS FOR JUDGMENT This is an application by Lee Eris Cornford ("the applicant") for bail pending the hearing of an appeal instituted by her in this Court against the severity of the sentences imposed upon her in the Supreme Court of the Australian Capital Territory on 14 November 1986 for offences against sub-s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978 of the Territory. The applicant pleaded guilty to four offences against the Ordinance each offence being that between 1 November 1985 and 30 January 1986 the applicant supplied a controlled substance, namely heroin, to another person. The first two offences related to the supply of heroin to one Abdul Rahim Bin Mohammed Subir. The recipient in each of the remaining offences was a person whose name was unknown. The applicant was sentenced in respect of the first offence to imprisonment for two anda half years and, in respect of each of the other offences, to imprisonment for eighteen months. The sentences of eighteen months were to be served concurrently but cumulatively upon the sentence of two and a half years so that the applicant was effectively sentenced to imprisonment for four years. A non-parole period of two years was fixed. At the same time as the applicant was sentenced the Supreme Court also sentenced one Nebra Ann Zakharoff in respect of four offences of supplying a controlled substance namely heroin. As the learned sentencing judge pointed out, although there was evidence of criminal association between the two offenders, the individual acts of the one offender were quite separate from the acts of the other: the element of joint liability was entirely lacking. Miss Zakharoff was sentenced, in respect of the first offence charged against her, to imprisonment for three years and, in respect of each of the other three offences, to imprisonment for eighteen months. The sentences of eighteen months were directed to be served concurrently but cumulatively upon the sentence of three years. The total term of imprisonment was, therefore, four anda half years with a non-parole period of two years three months. 3. It appears from the remarks of the sentencing judge that the applicant and Miss Zakaroff had been heroin addicts for many years although the applicant had been successfully resisting her addiction for some time before coming to Canberra. Miss Zakharoff came to Canbcrra at the beginning of 1985 in order to try to be placed on a methadone programme. She lived with her mother at Hawker. The applicant came to Canberra to live with her parents towards the middle of 1985. She Found employment with the Australian Federal Police asa typist. Miss Zakharoff began to use heroin regularly and became part of a network of heroin users who bought and sold hervin among themselves. She made a number of trips to Sydney to purchase heroin. In November 1985 the applicant moved away from her parents' home. She then renewed her acquaintance with Miss Zakharoff whom she had known slightly in Sydney. Miss Zakharoff enlisted the applicant's assistance and the applicant's room was used as a repository for the heroin that Miss Zakharoff was using and selling and for substantial sums of money arising from the sale of heroin. Soon after the arrangement was made the applicant began to use some of the heroin and became involved with Miss Zakharoff in the supply of heroin to a number of persons' in Canberra. The applicant's room was used for the weighing and preparation of individual packages of the drug for distribution. The sentencing judge accepted that the amount supplied by the applicant on each of 4. the four occasions to which the charges relate was one-fifth of a gram. The applicant has appealed, as of right, to this Court pursuant to sub-s.24(1) of the Federal Court of Australia Act 1976 against the severity of the sentences imposed on her. The general nature of the matters which will be raised on the hearing of the appeal sufficiently appear from the grounds of appeal which may be summarised as follows: (1) That the sentencing judge erred in that he - (a) failed to give sufficient weight to the fact that the applicant had voluntarily given herself up to the police for the purpose of seeking help to free herself from addiction to heroin and consequent involvement in heroin dealing; (b) failed to give sufficient or any weight to the fact that the applicant assisted the police in ending the network of heroin distribution in which she was involved; (c) failed to give sufficient weight to the fact that the applicant was not involved in supplying heroin for profit, but was involved to enable her to obtain heroin to satisfy her addiction; (d) failed to give sufficient weight to the fact that since giving herself up to the police the applicant had substantially rehabilitated herself; (e) failed to give sufficient weight to the fact that the applicant had no previous convictions; (f) failed to give sufficient weight to the fact that a custodial sentence would jeopardise the rehabilitation of the applicant; (g) failed to give sufficient weight to the fact that the applicant pleaded guilty. (2) That the sentences imposed on the applicant as compared to the sentences imposed on Miss Zakharoff were excessive in that they failed to reflect adequately the differences between the applicant and Miss Zakharoff in relation to the seriousness of their respective involvement therein and personal mitigating factors. (3) That the sentences imposed were manifestly excessive. It will be contended on behalf of the applicant that the sentences imposed by the Supreme Court should be set aside and that sentences should be substituted which do not require the applicant to serve any, or any further, period of imprisonment. The applicant accepts that the principle which governs the granting of bail after conviction and sentence is that it will not be granted otherwise than in exceptional circumstances . Whether exceptional circumstances exist in any case will depend upon the facts of that case: no gencral prescription has been, or can be, laid down. The applicant also accepts that the onus of establishing that such exceptional circumstances exist rests upon her. In support of the application, counsel for the applicant relied upon a number of matters. He referred to the following circumstances - that the applicant had voluntarily surrendered herself to the police; that she had given the police information which led to the arrest of other persons; that she had pleaded guilty to the offences; that she had no previous convictions; that the quantity of heroin the subject of the offences was not large; and that the applicant's involvement was to satisfy her addiction and not for commercial gain. Counsel placed substantial emphasis upon the fact that the applicant between 31 January 1986 and 12 November 1986 had been resident continuously at the Karralika Drug Rehabilitation Centre and had there undertaken a drug free rehabilitation course. He referred to the evidence before the sentencing judge that the applicant had progressed to the fourth of the five levels through which residents at that centre pass towards rehabilitating themselves from drug dependency and to the acceptance by the sentencing judge that there were very real prospects of the applicant overcoming her heroin addiction. Counsel relied on these matters to show, first, that there was a substantial issue to be determined on the hearing of the appeal and, secondly, that there were in this case exceptional circumstances warranting the granting of bail pending the hearing of the appeal. It 1s well settled that on the hearing of an appeal against the severity of a sentence the Court will not interfere simply because it 15 of the view that the sentence is more severe than it would have imposed. It will 7. interfere only if it be shown that the sentencing judge was in error in acting on a wrong Principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in passing sentence or the sentence may itself be so excessive as to manifest error: see R. v. Tait and Bartley (1979) 24 A.L.R. 473 at p.476. It may be accepted for the purposes of this application that there are matters that the applicant may properly put to the Court for its consideration on the hearing of the appeal. The Court cannot at this stage form a definitive view as to the applicant's prospects of success in her appeal but it may well be thought to be a formidable task to convince the appeal court that this was not a case for the imposition of a custodial sentence. The most significant of the matters upon which counsel for the applicant relied as amounting to exceptional circumstances warranting the grant of bail was the rehabilitation programme which the applicant had voluntarily undertaken and the desirability of the applicant being able to continue with that programme through the Karralika Drug Rehabilitation Centre. It was said that this was in the interests not only of the applicant but of society generally. Evidence was given before the sentencing judge by Mrs Zsuzsa Reiner, the Acting Co-Director of the Karralika 8. Drug Rehabilitation Centre, as to the treatment and counselling available at the Centre. Mr Reiner on 20 November 1986 swore an affidavit which has been filed on behalf of the applicant in the present proceeding. In her evidence to the Supreme Court Mrs Reiner said that the applicant had had difficulty with the programme at' the beginning but that she had coped well. She said that the applicant had reached the fourth of the five levels in the programme since the end of January 1986 though she could not remember the exact date. In her affidavit she says that that level was reached on 1 October 1986. In the Supreme Court she expressed the view that the applicant would reach the final level in the programme, known as "Candidate Out" level, within a month from the date on which the evidence was given, namely 10 November 1986. However, par.8 of her affidavit sworn on 20 November 1986 reads - "In my opinion Lee's rehabilitation will be complete if she is enabled to return to Karralika to finish the program. If she were able to return to the program I would anticipate we would assess her for about a month after returning to the program and then, if appropriate, encourage her to obtain employment outside the program, continue to live at Karralika. At a later stage, depending on her progress, she is likely to reach 'Candidate Out' Level which is the level at which residents are involved in a program to re-intergrate them with the community with the support of Karralika. That stage involves the person either living at Karralika or away from Karralika with weekly counselling sessions and support from Karralika." In the Supreme Court Mrs Reiner expressed the Opinion that a custodial sentence would jeopardize the applicant's full rehabilitation because the continuous 9. counselling provided at Karralika would not then be available to her. She summarised her view thus: "If she goes to gaol she does not have access to us and the gaol environment would not be one which would really help her." Mrs Reiner has, in her affidavit, again expressed the view that imprisonment would jeopardize the overall prospect of the applicant being cured of her drug addiction. It is apparent from his remarks on sentencing that the sentencing judge took into account Mrs Reiner's evidence. He said that he was particularly aware of the high risk that the applicant would face of being exposed to the use of heroin if a custodial sentence were imposed. His Honour referred to the submission that had been put to him by counsel with, as his Honour said, considerable force that the interests of the community lay in the rehabilitation of the applicant and not in the confirmation of her drug addiction which had been said by counsel tobe a likely consequence of her being sent to prison. However, weighing all of the circumstances his Honour concluded that a custodial sentence was the only appropriate sentence. While recognising that the question before me on the present application is not the same as that before the sentencing judge, I am bound to have regard to his Honour's view that the seriousness of the offences called for a custodial sentence. Conscious as his Honour was of the 10. importance to the applicant and to the community of the need for rehabilitation, his Honour was unable to regard that circumstance as requiring that a sentence other than a custodial sentence be imposed. Can it, in the circumstances, be regarded as providing the exceptional circumstance necessary to warrant the granting of bail? Counsel for the applicant has urged upon me everything that could be said in favour of the granting of bail. I have given anxious consideration to the matters put to me and to the evidence concerning the applicant's rehabilitation. In the result, however, I do not find those matters or that evidence sufficiently compelling to warrant acceding to the application. In particular, the evidence does not satisfy me that there is such a likelihood of jeopardy to the progress which the applicant has made towards her rehabilitation since January 1986 arising from her imprisonment pending the hearing of her appeal as to warrant the exceptional step of granting bail. The application is, therefore, refused. I certify that this and preceding 9 pages are true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves. Vue Rawr Associate Dated: 27 November 1986 11. Counsel for the applicant : Mr T.H. Brewster Solicitor for the applicant : Legal Aid Office (A.C.T.) Counsel for the respondent : Miss M. Quirk Solicitor for the respondent : Director of Public Prosecutions Date of hearing : 25 November 1986