New South Wales Court of Criminal Appeal CITATION : R v Bradley [2004] NSWCCA 88 HEARING DATE(S) : 24 March 2004 JUDGMENT DATE : 6 April 2004 JUDGMENT OF : Studdert J at 1; James J at 30; Dunford J at 31 DECISION : Leave to appeal refused. R v Burrell (2000) 114 A Crim R 207 CASES CITED : R v Goodwin (1990) 51 A Crim R 328 R v Smith (1987) 44 SASR 587 PARTIES : Regina v Lisa Maree Bradley FILE NUMBER(S) : CCA 60060/04 COUNSEL : E. Wilkins (Crown) P. Hamill (Appellant) SOLICITORS : S. Kavanagh (Crown) S. O'Connor (Appellant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/71/0045 FILE NUMBER(S) : LOWER COURT Blackmore SC DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60060/04 STUDDERT J JAMES J DUNFORD J Tuesday 6 April 2004 REGINA v LISA MAREE BRADLEY Judgment 1 STUDDERT J: The applicant, Lisa Maree Bradley, seeks leave to appeal against a sentence imposed upon her in the District Court by his Honour Judge Blackmore SC on 29 July 2003. On that date the applicant pleaded guilty to an offence of supplying a prohibited drug, and his Honour was asked to take into account four further drug offences on a Form 1. His Honour imposed a sentence of two years imprisonment to date from the date of sentence and, having found special circumstances, set a non parole period of one year. 2 As his Honour remarked, the facts concerning the offences were reduced to writing and were tendered without objection. I draw on his Honour's remarks on sentence to set out those facts: "Those facts are these: as a result of information received, police applied for and obtained a search warrant for premises located at 165 Britannia Street, Temora. At 10.30 am on Friday 7 March 2003, police from Wagga Wagga attended that address and executed the search warrant. The occupier's notice was served on Lisa Bradley and she was then spoken to by police. The offender led police to her room. Once in her room, the offender opened a cane bedside cupboard and took a red ice cream container out of the cupboard. Upon opening the red container, police located five resealable plastic bags containing vegetable matter. The offender told the police that the vegetable matter was cannabis that belonged to her and was for her own personal use. Analysis of the vegetable matter confirmed that it was 10.8 grams of cannabis leaf. This was one of the matters dealt with on the Form 1. Also in the red ice cream container were five resealable bags containing white powder. When shown those bags, the offender admitted that the white powder was amphetamine. The offender further stated that the amphetamine was hers for her own personal use. Analysis of the white powder contained in the five resealable plastic bags confirmed it to be .42 grams of amphetamine. Again this offence is one of the ones on the Form 1. Also in the red ice cream container were two plastic bags, each plastic bag contained a capsule. The offender told police that she believed the capsules were ecstasy. The offender further stated that the ecstasy was hers and that she had purchased it for her and her friends to share on the evening of Friday 7 March 2003. Analysis of the two capsules confirmed them to be ecstasy, which is 3,4-methylenedioxy-methylamphetamine in the quantity of .23 grams. Again this is an offence referred to on the Form 1. Inside the offender's room police located a piece of paper with numerical figures consisting of dollar amounts and weights. The offender told police that the paper was a tick list. The offender further told police that this tick list related to the supply of cannabis where monies were owed. Also located in the offender's room was a set of scales, a knife and a spoon wrapped in foil. The offender was transported to Temora Police Station and was electronically interviewed regarding these matters. During the course of the electronically recorded interview the offender admitted that the cannabis, amphetamine and the ecstasy located in the red ice cream container belonged to her and that she had those drugs for her personal use. During the course of the interview, the offender admitted her involvement in supplying methylamphetamine and cannabis. The offender told police that between 1 November 2002, and 3 January 2003, she was supplying amphetamine on a regular basis. The offender further told police that she was selling 1 gram of amphetamine per day. The offender said she was selling the amphetamine on behalf of another person. The offender told police that she was selling the amphetamine in order to fund the purchase of a pound of cannabis. The offender admitted that during the period 1 November 2002 to 3 January 2003 she would regularly obtain 1 gram of amphetamine which she then broke up into .1 gram deals. The offender would then sell the .1 gram deals of amphetamine for between $40 and $60. The price of the .1 gram deal would depend on the quality of the amphetamine. The offender told police at one stage she was earning $2,000 to $5,000 per week for the person who supplied her with the amphetamine. The offender stopped selling amphetamine on 3 January 2003 because she believed that her supplier had ripped her off for an amount of some $13,000." 3 His Honour correctly remarked that in relation to the Form 1 offences they required consideration "with a view to increasing the sentence that might otherwise have been appropriate for the particular offence to which the Form 1 attaches." 4 His Honour recorded that the applicant told police that she sold cannabis so that she could use cannabis herself without any real cost to her. His Honour assessed the matter as one involving dealing "to a substantial degree" (ROS 5). The judge went on to observe that the applicant was a street level dealer who obtained larger quantities of the drug and then broke them down to street deals. His Honour went on: "In the circumstances there is little doubt in my mind that involves dealing to a substantial degree." 5 The applicant is a young woman who was twenty-two years of age at the date of sentence. The sentencing judge had a report of the Probation and Parole Service which provided the judge with a considerable amount of background material. Whilst unemployed at the time the report was prepared, the applicant was spoken of favourably by former employers and his Honour described the case as "a rather sad one", and said that the applicant was apparently "full of potential". 6 His Honour found that the applicant pleaded guilty at the first reasonable opportunity and was entitled to a discount on sentence of twenty-five percent. His Honour also found that the applicant cooperated fully with the police and this supported a claim of genuine contrition and "her real desire to reform". 7 A single ground in support of this application has been advanced, namely: "The proceedings miscarried as a result of the learned sentencing judge being unaware of important factual material, namely the fact that the applicant had suffered a back injury in a serious motor vehicle accident in February 2002 and had back pain requiring medication and regular exercise and a different, less severe sentence is warranted and ought to have been imposed." 8 It was submitted that a miscarriage of justice occurred because of shortcomings in the applicant's legal representation in the District Court. It was submitted that counsel's conduct in failing to present evidence as to the applicant's injury and disability was inexplicable. 9 In the Probation and Parole Service pre sentence report there was reference to the applicant having had a back injury. On p 2 of the report under the heading "Education and Employment" the author of the report wrote: "Mr [sic] Bradley stated that in February of this year she was involved in a motor vehicle accident and damaged five vertebrae. She says that she is presently unable to work and has a medical certificate until 22 August 2003." 10 Then under the heading "Alcohol and Other Drugs" the author recorded: "Ms Bradley admitted that she still uses cannabis, ostensibly to cope with her back pain…" 11 Whilst his Honour clearly considered the pre sentence report, the applicant in giving evidence before the sentencing judge was asked no questions about her back injury and his Honour made no reference to this feature of the case in his sentencing remarks. 12 This Court in entertaining the application of the applicant was asked to receive, and did receive conditionally, evidence in the form of an affidavit from the applicant to which medical material was annexed and an affidavit of her solicitor, Ms Stella Calomeris. The Court also received conditionally an affidavit by the solicitor having the carriage of this matter for the prosecution, Mr Andrew Cheung, to whose affidavit a medical report of Dr Roberts and a physiotherapy report from the Auburn Hospital were annexed. 13 The applicant was cross examined on her affidavit. 14 One of the annexures to the affidavit of the applicant received conditionally on this application is a report from Dr Heaney, the medial superintendent of the Wagga Wagga Base Hospital. This report is dated 19 November 2003. It records that the applicant attended at the hospital on 24 February 2003 and gave a history of a car accident in which she had been involved the previous day. The report records that the applicant presented at Temora Hospital but refused to be admitted. On 24 February 2003 the applicant attended at Temora Hospital again and x-rays were taken that showed multiple fractures. The applicant was then transferred to Wagga Wagga Base Hospital. CT scans carried out on 25 February 2003 demonstrated the following: "A CT scan was done of the thoracolumbar spine. This scan, done on the 25th of February, 2003 at 1413 hours, found that the spinal canal was of adequate dimensions and that the thecal sac was normal; i.e. that there was no evidence of compression or damage to the spinal cord. The pedicles and lamini (various parts of the bones of the spine) were intact and the fracture, particularly at T6, was stable. Further scans demonstrated fractures through the anterior cortex and anterior vertebral bodies of T12 and L1. These are consistent with anterior wedging ('wedging' refers to the front part of the bone being shrunk down with the back part of the spine being of normal height). That is, the normally square vertebral bodies have taken partly the shape of a wedge. It is recorded in the notes on the 26th of February, 2003, that Lisa Bradley was seen by the Orthopaedic team and Dr Howard. They noted that her observations were stable. Lisa stated that she wished to go home that day. At that stage, on the 26th of February, 2003, she was complaining of minimal pain. The plan at that stage was to wait for a back brace which physiotherapy and occupational therapy were organising." 15 Dr Heaney further reported that the fractures "will have associated pain from time to time." 16 His report concluded: "Lisa Bradley has three or more stable wedge fractures of her spine. These fractures do not require any particular medical treatment. Given the opportunity, Lisa Bradley would benefit from periods of walking and/or swimming." 17 Had a report been sought and obtained from Dr Heaney prior to sentence being imposed upon the applicant, the judge would have had the benefit of the above evidence from Wagga Wagga Base Hospital. On 22 July 2003 the sentencing hearing was adjourned and the court was informed by counsel for the applicant that on the next occasion two medical reports would be provided if available. According to the applicant she provided counsel with one report after the adjournment on 22 July 2003 and this was a report from Dr Thatcher, a general practitioner at Temora. A copy of this report is Annexure B to her affidavit. The report is not particularly informative, merely stating: "This is to state that Lisa Bradley has severe back pains, lower back pain and referred pain to the legs, the severe back pains are secondary to fractures of T5 and T12, L1 from MVA. Lisa feels the problem is getting worse and requests further x-rays and I have suggested she sees Dr Agbarakwe who is more familiar with her case." 18 In her evidence received conditionally on the present application, the applicant asserted that she did obtain a report from Dr Agbarakwe later that week and that this was posted by her to her barrister. According to the affidavit of Ms Calomeris, the applicant's former solicitor recollects that the applicant was going to obtain the medical reports herself. No copy of any report from Dr Agbarakwe dated July 2003 is in evidence and if there was such a report its content has not been proved. 19 A reading of the transcript of proceedings of 29 July 2003 reveals no mention whatsoever of the applicant's back condition. No affidavit has been placed before the Court from counsel who appeared for the applicant, but Ms Calomeris has stated that she has conducted a conversation with him and has been informed that he no longer has a clear recollection of the matter. Whether any evidence other than the uninformative report from Dr Thatcher was made available for counsel on 29 July 2003 is not apparent. For my part, I found the applicant's evidence as to this to be unconvincing. 20 In order to succeed, it is necessary for the applicant to satisfy this Court that there was a failure to introduce evidence of such significance that the sentencing judge may have regarded it as having a real bearing on his decision: see R v Goodwin (1990) 51 A Crim R 328. 21 Of course, the health of a person to be sentenced may be a relevant factor to be weighed by the sentencing judge. In R v Smith (1987) 44 SASR 587 King CJ said at 589: "The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The Courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Illhealth cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking illhealth will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health." 22 The above statement of principle has been much cited, and I refer to R v Burrell (2000)114 A Crim R 207 where Mason P, with whose judgment the other members of the court agreed, cited those dicta as an authoritative statement of relevant principles. 23 Addressing the application of what was stated in the above passage: (a) does it appear that imprisonment will be a greater burden on the applicant by reason of her back condition; or (b) is there a serious risk of imprisonment having a gravely adverse effect on the applicant's health? 24 As to consideration (a), the evidence available from Dr Heaney reveals that the applicant was assessed to have three or more stable wedge fractures of her spine which required no particular medical treatment, and that although she would have pain associated with the fractures from time to time, she was complaining of minimal pain at the time of her discharge from that hospital. So far as the report of Dr Thatcher is concerned, it does not indicate how often he had seen the applicant, although he alerted the reader to the fact that Dr Agbarakwe was more familiar with the applicant's case than he was. His report of 18 July 2003 appears to do no more than to record the applicant's complaints to him of severe back pain. Although the applicant informed the Court that she obtained a report from Dr Agbarakwe and made this available to her counsel, no copy of such report is available, and that practitioner's opinion as to the applicant's condition and treatment needs as at the time of sentencing is unknown. 25 Notwithstanding Mr Hamill's submissions, I am by no means convinced had the medical evidence I have reviewed been placed before the sentencing judge, consideration (a) may have influenced him to reduce the sentence he would otherwise have imposed. 26 As to consideration (b), the evidence does not establish that there was at the relevant time a serious risk that imprisonment would have a gravely adverse effect on the applicant's health. As Dr Heaney reported, the fractures required no particular medical treatment because they were stable. Dr Heaney did consider that the applicant would benefit from periods of walking or swimming and although swimming would not be available in a custodial setting, the opportunity for other exercise would have been anticipated. There was the opportunity for medical, nursing and physiotherapy attention within the prison system and Dr Roberts from Corrections Health Service has reported that the applicant was seen by medical officers on at least eight occasions prior to 18 March 2004. In her evidence the applicant said that her back has become more painful over her period in custody although that does not seem to accord with the history set out in Dr Roberts' report. In any event, I am unable to find on the evidence that at the time of sentencing there was a serious risk of imprisonment having an adverse effect on the applicant's health. There was at that time no call for anything other than conservative treatment and in particular the provision of an appropriate drug regime which was just as available within the prison system as outside it. 27 The applicant complains that the medication given within the prison system has not been effective in relieving her pain and complains that she was taken off Tramadol, an opiate-like medication, that had been prescribed for her before her imprisonment. The applicant said she was taking this alternatively with Naprosyn. However, a deliberate decision was taken by those treating her in hospital to gradually wean her off Tramadol, and I am quite unable to determine that that decision was other than appropriate. Returning to the time of sentence, it seems to me that there was no serious risk that imprisonment would have a gravely adverse effect on the health of the applicant. 28 In the circumstances, I do not consider that the sentencing process miscarried. My assessment of the additional material sought to be relied upon in this Court is that had it been before the sentencing judge, this is unlikely to have influenced him to impose a lesser sentence than that which has been imposed. This, of course, bears directly upon the admissibility of such evidence: see Goodwin (supra). In my opinion, the evidence sought to be relied upon by the applicant for the purposes of this application should not be received. 29 For the above reasons, I propose that leave to appeal should be refused. 30 JAMES J: I agree. 31 DUNFORD J: I agree with Studdert J. ********** Last Modified: 04/08/2004 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. 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