Clements v Albuquerque - [1999] WASCA 308

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CLEMENTS -v- ALBUQUERQUE [1999] WASCA 308

CORAM: SCOTT J

HEARD: 10 DECEMBER 1999

DELIVERED : 10 DECEMBER 1999

PUBLISHED : 22 DECEMBER 1999

FILE NO/S: SJA 1197 of 1999

BETWEEN: KYLEEN MARIE CLEMENTS
Appellant
AND
SANJEEV ANTHONY ALBUQUERQUE
Respondent

Catchwords:

Appeal against sentence - Taking prohibited drug into a prison - Non-custodial option applied - Sentence to reflect gravity of conduct whilst facilitating prospects of rehabilitation

Legislation:

Prisons Act, s 50(1)(b)

Result:

Appeal against sentence allowed

Representation:

Counsel:

Appellant: Mr G P Bauman
Respondent: Ms L J Dias

Solicitors:

Appellant: Aboriginal Legal Service
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Kennedy v Fox, unreported; SCt of WA (Owen J); Library No 940626; 19 September 1994
O'Keefe and Kennedy v Spratt [1972] AC 83
R v GP (1997) 18 WAR 196
R v Zwarcyz (1997) 72 SASR 341
Walser v The Queen, unreported; CCA SCt of WA; Library No 940308; 23 June 1994
Wood v Samuels (1974) 8 SASR 465

Case(s) also cited:

Bellissimo (1996) 84 A Crim R 465
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Bidwee v Robinson, unreported; SCt of WA (McKechnie J); Library No 990197; 4 March 1999
House v The King (1936) 55 CLR 499
Liddington (1997) 97 A Crim R 400
R v Cole, unreported; CCA SCt of QLD; BC 9803354
R v Peterson [1984] WAR 329
R v Tait (1976) 46 FLR 386
Thompson v The Queen (1992) 8 WAR 387

SCOTT J: On Friday, 10 December 1999, in the Supreme Court of Western Australia at Broome, I allowed the appellant's appeal against a sentence of 6 months' imprisonment and substituted a sentence of 5-1/2 months' imprisonment suspended for a period of one year. I indicated that I would later publish detailed reasons for having reached that view. These are those reasons.
The appellant was born on 18 February 1976 and is now aged 23 years. Until 5 February 1999 she had no criminal record. The appellant comes from a good home with a strong and supportive family and was educated at boarding school in Perth.
The appellant's problems began early in 1999 when she met and fell in love with a drug addict who became her boyfriend. Although it is not clear on the evidence, it would appear that the boyfriend was addicted to heroin. At the time of the offences the subject of this appeal, he was incarcerated in Casuarina Prison.
The facts giving rise to these charges were that on 18 May 1999 the appellant, together with a friend, attended the C W Campbell Remand Centre to visit the appellant's boyfriend. At the time of the visit the appellant had a balloon filled with a small quantity of heroin (said to be valued at $100) in her mouth. The prison authorities had been alerted to the fact that the appellant would be bringing illicit substances into the prison and as a consequence she was advised that she would be strip-searched. The appellant swallowed the heroin filled balloon and as a result no drugs were found during the search. A search of the appellant's friend's vehicle revealed less than 1 gram of cannabis in the appellant's handbag, which she said was hers for her own use.
The appellant advised prison officers that she had swallowed the balloon and heroin and she was taken to a medical facility and later to Fremantle Hospital where she became quite ill. She was subsequently charged with two offences, namely:
1That on 18 May 1999 at Canning Vale she brought a substance, namely, heroin, into the prison, namely, Canning Vale Remand Centre, where the substance was of a kind likely to jeopardise the good order of the remand centre.
2That on 18 May 1999 at Canning Vale she had in her possession a prohibited drug, namely, cannabis.
On the first charge the appellant was sentenced to a term of 6 months' imprisonment and on the second charge sentenced to a term of 3 months' imprisonment concurrent. Those sentences were imposed on 3 November 1999. The appellant was granted leave to appeal on 11 November 1999 and on that day was granted bail.
The appellant has serious convictions dating from 30 June 1999, including damage; possessing prohibited drugs; breaching a community based order; damage; possessing an offensive weapon and stealing. Those convictions occurred between 30 June 1999 and 14 October 1999. At the date of commission of these offences the appellant had no criminal record of any significance.
When the matter came on for hearing before the Court of Petty Sessions, the transcript revealed that his Worship took the view that the offence of bringing heroin into a prison was so serious that only a custodial term could be contemplated. After the facts in relation to the matter had been outlined to the court, his Worship said, "How can one escape a prison sentence for - - on pleading guilty to taking heroin into a prison."
His Worship took the view that the only appropriate sentencing option for an offence as serious as this was a custodial term.
Counsel for the appellant outlined to his Worship the circumstances surrounding the offence and in the course of those submissions his Worship said:
"If you do not send someone to gaol for taking heroin into gaol - - - into a prison, to give it to a prisoner, if that does not bring a prison sentence then nothing will, nothing can."
His Worship also said, "This is an absolutely outrageous offence to commit."
Counsel for the appellant explained to his Worship that the appellant had not been in any trouble in her life prior to the chapter of events in which she had become involved in 1999 and that these offences pre-dated any matter of significance on her record. His Worship, however, remained of the view that only a custodial term was appropriate and in sentencing the appellant said:
"We hear all the time of how prisons are in chaos because they are using drugs. Someone is taking the drugs into them. It is just - - it just really has to be dealt with severely as a disincentive to this lady and to anyone else who might be thinking of taking drugs into gaol, particularly heroin. It has got to be known that if you do it and you get caught, you are in there too. … But this offence of taking a drug, particularly heroin into a prison is just far too serious an offence to be dealt with other than by way of a prison sentence."
The first thing to be said about his Worship's sentencing remarks is that he was entirely correct in characterising the appellant's conduct as extremely serious and in characterising the offence as one of the utmost gravity. That, however, did not absolve him from the responsibility of considering other sentencing options if they were thought to be appropriate in all the circumstances of the case.
As has been said repeatedly in this Court, every case must be looked at on its own facts and there were circumstances surrounding this particular appellant that called for the careful consideration of other sentencing options. When the facts are looked at objectively, the appellant, who was then aged 23, had been through a very difficult time in her life. Having seen her in court during the hearing of this appeal, it was clear that whilst she was aged 23, she was relatively immature. The chapter of criminality in which she had been involved had arisen because of her association with the particular prisoner and because of the circumstances in which she had found herself. As counsel made clear, the association between the appellant and the prisoner has ceased, she has returned to live with her parents in Broome. An earlier suspended sentence imposed upon her for her conduct subsequent to this offence has had a salutary effect. Taking all of those factors together, in my opinion, the appellant is both remorseful, and realises the stupidity of her criminal conduct, and has firmly resolved not to be involved in illegal activity in the future. In the circumstances, and because of the particular facts of this case, other sentencing options were open and should have been considered.
In Kennedy v Fox, unreported; SCt of WA (Owen J); Library No 940626; 19 September 1994, his Honour, when dealing with the same offence under s 50(1)(b) of the Prisons Act, said at 9:
"In my opinion the Magistrate was quite correct in viewing the offence under s 50(1)(b) of the Prisons Act as serious. The maximum penalty for such an offence is a fine of $2,000 or imprisonment for 18 months. Conduct that infringes the provision has a tendency to undermine the good order and security of a prison. It would be trite to say that a medium security prison such as Bunbury houses some very unsavoury characters. Some though not all, prisoners have the capacity to be very difficult to handle even under normal circumstances. When inhibitions and sense of judgment and proportion are lowered or interfered with by drug ingestion the task of maintaining order is severely prejudiced. This reflects not only on the routine of the prison but on the safety and welfare of prisoners and staff alike. The Magistrate took the view that general deterrence was an important factor in this sentencing exercise. I agree with him."
For my part, I entirely agree with what Owen J said and in these reasons I do not in any way seek to diminish the seriousness of the offence in which the appellant became involved. It was utterly irresponsible of her to have engaged in criminal conduct of the type in which she became involved, even although it may have been done because of threats made both to her boyfriend and herself.
Having taking those considerations into account, and particularly having evaluated the seriousness of the offence, it still remains the case that the judicial officer had the responsibility of assessing this case on its merits. There have been many cases of a serious nature in which non-custodial options have been applied, see, for example, Walser v The Queen, unreported; CCA SCt of WA; Library No 940308; 23 June 1994.
The seriousness of an offence such as this is not to be underrated and that has been recognised, not only in Western Australia, but also in South Australia: see R v Zwarcyz (1997) 72 SASR 341 where a court comprising Millhouse, Perry and Nyland JJ considered the equivalent offence in South Australia and said at 344:
"In this case, it is obvious that there was an element of premeditation in the offending. It seems that the appellant was not long out of prison himself at the time of this offence. The drug involved was heroin. The drug was being smuggled into a correctional institution with all the attendant difficulties that can be caused to the prison population.
The appellant does have a history of prior drug offending, even if, in the scheme of things, the earlier offences could be described as being at the lower end of the scale, having been dealt with by way of fines."
That case, involved the supply of a very small quantity of heroin to an inmate in a prison and the court refused to disturb a sentence of 2 years and 3 months' imprisonment with a non-parole period of 18 months. It should also be pointed out that in Kennedy v Fox (supra), the drug involved was cannabis, whereas in this case the drug involved was heroin and there is, of course, a distinct and important difference between the two.
In my opinion, the error made by the learned Magistrate in this case was in considering that a suspended term of imprisonment was not a sufficiently serious disposition for a case such as this. In R v GP (1997) 18 WAR 196, Malcolm CJ approved the passage in Wood v Samuels (1974) 8 SASR 465 at 468, which referred to the judgment of Lord Reid in O'Keefe and Kennedy v Spratt [1972] AC 83 at 91:
"Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, there being a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to sent to prison for the first time and is most likely to benefit from the exercise of the court's clemency."
In R v GP (supra) Murray J said at 234:
"I am attracted to the view that the proper occasion to suspend service of a sentence of imprisonment is where, although other non-custodial options must be excluded and a sentence of imprisonment of a certain duration is considered to be the only appropriate sentence, the circumstances are not such as to demand that the sentence be immediately served and the circumstances of the case are such as to establish, the burden being on the offender, that there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful."
I am of the view that this is exactly such a case and that the ends of justice in this instance could properly have been met by imposing a suspended prison term to reflect not only the gravity of the conduct but to facilitate the prospects of rehabilitation of the appellant.
The point about suspending a term of imprisonment in circumstances such as these is that the deterrent effect remains operative. As was made clear to the appellant when this matter was determined, should she relapse into criminal conduct during the term of the suspended sentence, there is no doubt that the term will become operative and that she will be returned to custody. It follows that there is a powerful incentive for her to continue with her resolve to abandon her former ways and return to a law-abiding life under the control and supervision of her parents. That, she has agreed to do.
I emphasis that in arriving at this conclusion, particular facts and circumstances surrounding both this case and the appellant have been critical. I do not for one moment intend to downgrade the seriousness of the criminal conduct in which the appellant was involved, nor do I seek to suggest that in other cases, and probably in most other cases, a custodial term will not be appropriate. Each case must turn on its own facts and it is only because of the singularly significant and unique facts that surround this particular appellant that, in my view, this appeal should be allowed.
In the result, each of the terms of imprisonment imposed (being 5 1/2 months in total after allowing for the time the appellant was in custody) was suspended for 12 months.