Brodie, Suzanne Louise v The Queen

[1977] FCA 59

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On appeal from the Supreme Court of

the Northern Terr i tory

HE"l7ZF.;i : ... S.UVjkVT. .&QSrTS.Fi .BPPP.XQ ....

........ ........ ........ ...... Appellant

........ ........ ........ ........

Ait3

- ........ ........ ........ ........ . THE QUEEN

........ ........ ........ ........ Respondent

........ ........ ........ ........

O R D E R

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- IN THE FEDERAL COURT F AUSTRALIA )

NEW SOUTH VALES DISTRICT EGISTRY 1	NO. G53 of 1977
GEIEFWL DIVISION

On appeal from the Supreme Court of

the Northeri Territory

BETTEEN : SUZANNE LOUISE BRODIE

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Appellant

- AND: TIB QUEEN

Respondent

CORAI\I: BOI'i'EN C. J. , FRANK1 AND TOOHEY JJ.

14th September, 1977

J U D G M E N T

The appellant, Suzarme Louise Brodie, pursuant to

leave, brings an appeal against the severity of a sentence

imposed in the Supreme Court of the Northern Territory.

Miss Brodie and Mitchell Paul Conlan were charged

u t h offences under the provisions of s.233B of the Customs

Act 1901. Initially, pleas of not guilty were entered by both

accused but after extensive arguments as to the admlssion of

certain evidence, and in particular a record of interview

with the appellant, Mu.. Conlan pleaded guilty to a charge of bemg

knowingly concerned In the importation of heroin contrary to the

provisions of s.233B(l)(d) of the Act and also to a charge of

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possess ion of hero in cont ra ry to the provls ions of s .B33B(l ) (ca) .

The appel lan t p leaded not gu i l ty to both charges and

the ju ry acqu i t t ed he r upon the charge of being knowingly

concerned i n the importat ion but convicted her upon the charge

of possession of heroin.

It is common ground t h a t t h e a p p e l l a n t was born on

27th Novei~~ber 1957 and had no pr ior convict ions of any klnd.

' ! She had l e f t s c h o o l when aged 16, obtained work, and continued

t o l i v e with her parents near Newcastle until approximately

August 1975. Then, unable t o o b t a i n s a t i s f a c t o r y employmen-c

i n Newcastle, she came t o Sydney t o l i v e first vuth h e r

grandmother and l a t e r she sha red a f l a t with ano the r g i r l .

During the t ime when she was i n Sydney, she met Mr.Conlan, who

was then 24 years o f age. He had two p r i o r c o n v l c t i o n s i n

I	r e spec t or"	the possession of marijuana	and	one	f o r vagrancy.
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I n November o r December 1975 the appel lan t t rave l led to Queens land

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with tk. Conlan and arrlved i n Darvrin about January 1976.

i I n March 1976 both went t o Penang where Mr. Conlan purchased,

for about $100, a quant l ty of hero ln , the subjec t of the

I charges against him and the appellant. The hero in was then

imported into Austral ia and, a t the t ime o f t h e a r r e s t of

Mr. Conlan and the appe l l an t on 13th April 1976, Nr. Conlan

had sold some of t he he ro in which had been mixed with sugarine

and p laced in capsu le s . I 4 r . Conlan gave the appe l l an t $1 50

from the proceeds of such sale. The learned trial Judge, before

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imposing sentence, found that the possession of the heroin was

a joint venture for the purpose f sale in respect of whlch

Ifi. Conlan and the appellant were equal partlclpants, that

the venture was not part of a large scale operation of a iirug

ring with established outlets, and -chat the value	of th heroin
was approximately $4,500.

Both the appellant and Yr. Conlan gave d.etalled

evidence upon the voir dire h e n the question of the

admissibility of certaln evidence was baing considered during

the trial. The appellant made	a statement and also gave
evidence after convictlon.

After the appellant was convlcted, her senior Counsel

asked that the matter be dealt with as a case of joint possesslon

upon the basis that Mr. Conlan was an older person who had a

l	criminal record and vho, upon	C uiisel's Instructions, had
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considerably influenced the glrl in relation to the events

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which followed after I@. Conlan and the appellant went to

South-East Asia. The learned trial Judge said that if he was

to deal vuth the matter in that way, he could only proceed upon

l the basis that possession was for the purpose of sale.

His Honour had previously indicated that in considering

the question of the deterrent effect of punishment, he would

I need to know a great deal. more about the circumstances and

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motivation i n r e l a t i o n t o t h e p r e s e n t o f f e n c e . Thereupon

senlor Counsel, Yr. Barker, called the appellaiit and she gave

evidence on oath. Included i n the evidence i s the fol lowing

passage: -

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llIflr. Barker: You t o l d us t h a t he asked you t o b r l n g

it back and you d i d that , d i d you? ... Yes.

And that was	i n your shoes?
H i s Honour:	Just before you go on, fib?. Barker.

(To witness) : Why d l d you go t o Bangkok? . . . Because

we wanted t o go t o Bangkok. If

It will be seen that h i s Honour interrupted the answer.

I I .	La ter h i s Honour asked the	following question:-
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"Did you have heroin In your shoes as you came i n

through customs?I1

Witness: llYesfl.

Before us, Counsel fo r t he appe l l an t submi t t ed tha t this las t

question asked by the l ea rned t r i a l Judge ind lca ted tha t he I ,

had taken into account matters which were not relevant, because

the jury had acqui t ted the appel lan t on the charge o f rmportation.

He a l so mentioned t h a t t h e l e a r n e d t r l a l Judge had said i n h i s

l reasons for sen tence tha t Mr. Conlan had "...prevailed upon her

t o b e t h e c a r r i e r o€ it i n t o Australia.. . l 1 . It 1s important

t o n o t e t h a t i n h i s r e a s o n s ,	h i s Honour	included the fol lowing
passage:-

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''1 do not, of course, pass any sentence on Brodie

with respect	to the offence of importing,'because
she has been	acquitted of that".

His Honour passed an equal sentence in respect to

the charge of possession of heroin, f four years with a non

parole period of two years upon both Nr. Conlan and the appellant.

In addition, on the charge of being knowingly concerned in the

importation of heroin, he sentenced Mr. Conlan to four years

and six months with a non parole period of two years and six

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months, to be served concurrently with the sentence upon the

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charge of possession. The maximum sentence provided is a fir,?

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not exceeding 4,000 dollars or imprisonment for a period not

exceedigg ten years or both.

Counsel for the appellant submitted that, having

regard to the sentence imposed on Mr. Conlan, the sentence

on the appellant was excessive, both as to the head sentence

and as to the non psrole period.

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Counsel for the Crown submitted that the sentence

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on Mr. Conlan was in fact a lesser sentence than he might have

receive. ! to expected

In exercising the jurisdiction conferred upon this I

Court to hear appeals from Fne S'Jpreme Court of a Territory,

in the case of appeals against sentence, this Court will not

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interfere with the discretion exercised by the trial Judge

unless satisfied that in some way his discretion miscarried

or the exercise of it was unsound o r unreasonable (Harrls v.

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The Queen (1954) 90 C.L.R. 652; Kovac v.

Court of Australia, 1/9/77, unreported).

In the present case. we do not think any error in

the exercise of his discretion has been shown. Nor do we thlnk

the head sentence or the non parole perlod are unsound or

unreasonable. The learned trxal Judge ap2ears to have given

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full effect to Yne appellant's acquittal of the offence

of importing. So far as the relationship between the two

sentences 1s concerned, while as between co-accused it is

desirable to avoid disparity where, looking at it from the

accused's p3int of view it might have been expected there would

be uniformlty or unlformity vL?en it might have been expected

there would be disparity, this is not the only consideration.

Givlng effect to the various elements involved in sentencing,

it may sometimes be necessary to defeat such expectations,

Dealing particularly with the non parole period

I fixed for the appellant, it rrou1.d be wrong to pay regard

simply to the aspect of rehabilitation considering the appellant's .

l	age, background, sex, good previous record and that she acted
under the influence of K!. Conlan. These were proper matters
to be taken into account and the learned trial Judge appears to
have given them full consideratlon. As was said in Power v.
The Queen (1974) 131 C.L.R. 623 in the joint Judgment of

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Barwick C.J. and Menzies, Stephen and Mason JJ. (at p.628):-

"In a true sense the non-parole period is a m nimum

period of imprisonment to be served because the

sentenclng judge considers that the crlme committed

calls for such detention.

Nor do we understand how it is said that the fixing

of a non-parole perlod is not concerned with

deterring either the prisoner himself o r others

from crime. Surely the requlrement that a prisoner

must stay in conflnement for some perlod seen by a

judge to be appropriate In all circumstances, would

operate more as a deterrent than to allow the prison

gates to be opened almost 2s soon as they have closed,

that is, when the parolli!g authorlty has had tlme to

consider whether the sentence shoul-d be served in

confinement. To the extent to which deterrence is

an object of lmprisoninent, then irnprisonment wthout

a chance of release for a longer tlme, rather than

for a shorter tlme, is within that objective.Il

The importance of the deterrelrt effect of a sentence in

relatlon to traffic n drugs is generally accepted (see - R. v.

Van Swol (1974) 4 A.L.R. 386 at p.399; RaSallngam SlvaDrahasm

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v. (1972) W.A.R. 137 at p.141; v. Howarth (1973) Q'd R.

431 at p.437; v. Plercey (1971) V.R. 647 at pp.653-4).

Even the prevlous good record of a person convicted of being in

possession of heroin, when the facts indicate that the possession

has been for the purposes of sale for profit, may have a

comparatively slight mitigating effect (see The Queen	v. Jackson
(1972) 20 F.L.R. I10 at p.116).

In some cases it seems a young person of good previous

record may be used dellberately, in the expectation that, if

caught, he or she may escape severe punishment. In the present

case, the appellant after conviction gave evidence that Nr.

Conlan said to her -

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"that he wanted me to brmg it (the heroin) back

into Australia because he had convlctions 'and

he couldn9t because they would search him".

Later she gave evidence she told the lnvestigating men

that she was taking all the blame because he (Conlan)

said that "if he got bustedll, he would Just go to gaol

for years, and if she took the blame -

Ilbecause I was 18 and Ifve had - never had anything

to dc with police that IPd Just get out on a fine

end he'd pay the fine and we could go and live in

England or somethlng.ll

The learned trlal Judge dld not refer to thls

evidence. We do not rely upon it. We mention it to illustrate l

how complex may be the deterrent element ln sen-cenclng.

To sum the matter up. We have reached the concluslon

that no e r r o r l n the exercise of the discretlon of the

learned trial Judge has been shown, n r has it been shown that

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his exerclse of discretion in relation elther to the head sentence I

or the non parole period was unsound or unreasonable. I

So far as the non parole period is concerned, it is 5 ,

clear, having regard to the seriousness of the offence, that a

substantial non parole period was called for. To ask us to

reduce it 1 s in the circumstances no more than an inntation

to substitute some view of our own for that of the trial Judge.

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This is not our role.

The order of the Court will be - appeal dismissed.

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