Cornford, L.E. v The Queen

Re: LEE ERIS CORNFORD and DEBRA ANN ZAKHAROFF
And: THE QUEEN
No. ACT G75 and G79 of 1986
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Gallop J.
Jenkinson J.

CATCHWORDS

Criminal Law - appeals against severity of sentences - appropriateness of cumulative sentences - relevant factors for drug offences - relevance of co-operation of prisoners with police.

Poisons and Narcotic Drugs Ordinance 1978 (A.C.T.)

Evidence Ordinance 1971 (A.C.T.)

Attorney-General v. Tichy (1982) 30 SASR 84

Jurcovic (1981) 6 A Crim R 215

Golding v. The Queen (1980) 3 A Crim R 26

Osenkowski (1980) 5 A Crim R 394

Tania Amos v. The Queen (Full Court of Federal Court, unreported 6 February 1985)

Edward James Amos v. The Queen (1985) 16 A Crim R 408

The Queen v. Carey (1975) 11 SASR 575

Reg. v. Melville (1956) 73 WN (NSW) 579

HEARING

CANBERRA

#DATE 5:6:1987

ORDER

That the appeal of the appellant Cornford be allowed;

That the sentences imposed upon her be set aside and in lieu thereof she be sentenced to a term of 18 months imprisonment on the fifth count and a term of 6 months imprisonment on each of the sixth, seventh and eighth counts, such sentences to be served concurrently but cumulatively upon the sentence imposed in relation to the fifth count.

That the appellant Cornford be released after she has served part of the sentences imposed upon her, namely on 13 June 1987, upon her entering into a recognizance self in the sum of $500 with one surety in the sum of $500, conditioned that she be of good behaviour for a period of 3 years; that during that period she be subject to the supervision on probation of the Director of Welfare of the Australian Capital Territory or some person appointed by him in that behalf; that she obey all reasonable directions of such person in relation to her residence, employment and associates, and that she accept such counselling as may be directed in relation to drug use.

That the appeal of the appellant Zakharoff be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

We are hearing appeals from sentences imposed in the Supreme Court of the Australian Capital Territory on Lee Eris Cornford and Debra Anne Zakharoff.

The two accused were prosecuted on the one information, the first four counts relating to the second-named of them and the last four counts relating to the first-named. Each offence was of supplying a controlled substance, namely heroin, contrary to s.4(2) of the Poisons and Narcotics Drugs Ordinance 1978 (A.C.T.). Both accused pleaded guilty. The learned Judge commented upon the fact that the two accused were charged in the same information, although in respect of distinct offences. One of the problems presented by this procedure is the difficulty of keeping apart the admissible evidence relating to each.
Miss Cornford's case was considered first in the proceedings before the Supreme Court and I find it convenient to follow that course in these reasons.
His Honour dealt thoroughly with the facts but as he stated, there were inconsistencies and some uncertainty. However, he regarded these as not affecting his conclusion. The principal material before his Honour comprised statements of the prosecutor made at the trial without objection, evidence of the police officer carrying out the investigations, with the records of interview taken, antecedents reports respecting both accused, and the sworn evidence of Miss Cornford and her father and and of Miss Zakharoff.
Acting under s.83 of the Evidence Ordinance 1971 (A.C.T.) his Honour ordered the names "of certain persons mentioned in the records of interview and in the evidence of the accused be omitted". This has added to the difficulty of this Court in understanding some of the evidence in detail.
The offences charged against Miss Cornford took place between 1 November 1985 and 30 January 1986. She was at the time 28 years old. She had in earlier years made the acquaintance of Miss Zakharoff and they met again in about early November 1985. Miss Cornford was then living in the Canberra suburb of Cook with a friend and the friend's sister, and was employed as a temporary typist in the office of the Australian Federal Police in Canberra. Miss Zakharoff having again made her acquaintance and being then engaged in prostitution for the purpose of supporting her drug habit, asked Miss Cornford whether she would keep a substantial amount of money for her, being the proceeds of her earnings. This request was made on the basis that Miss Zakharoff did not wish to leave the money at her own home in case her mother should find it. Miss Cornford agreed. The sum was somewhere about $2,000 or more and doubtless it fluctuated from time to time. When at an early stage Miss Zakharoff left with Miss Cornford an amount of heroin for safe-keeping, the latter, having herself had a drug habit some time earlier, found the presence of the heroin irresistible. There had been a discussion between the two of an amount to be paid to Miss Cornford for looking after the money, but apparently no money ever changed hands. Instead Miss Cornford helped herself to some of the heroin left with her and again developed a habit.
Miss Cornford did not herself obtain supplies of heroin from any outside sources, but relied upon the quantities left with her from time to time by Miss Zakharoff. This quantity varied but apparently was never much greater than about five grams, and was on average about three grams. From time to time she was asked to make available to Miss Zakharoff or to people nominated by Miss Zakharoff some quantity or quantities. She would either deliver it personally or arrange to leave it in her letter box. She usually received some cash payment for the amount thus supplied and this was accounted for to Miss Zakharoff in a loose fashion, apparently forming part of the money kept by Miss Cornford for Miss Zakharoff.
The accused dealt in various quantities of heroin, for which different colloquial terms were used. A "weight" was a gram of heroin, which at the time cost about $200 in Sydney, and up to twice as much in Canberra. A "deal" was a fifth or a quarter of a gram, worth about $50. A "taste" was an amount sufficient to satisfy for the moment an addict's craving, and this varied according to the addict's tolerance and could cost anything from $10 up.
There is no evidence as to the purity of the heroin involved, but it can be assumed to be "street" grade, that is suitable for immediate use without being further "cut" or diluted with other substances.
As to the circumstances of the offences, the picture which emerges, as the learned judge saw it and as I see it, is one of a circle of addicts who would sell to, and buy from, each other depending upon who had supplies of heroin at the time. One of these addicts was Abdul Rahim Bin Mohammed Subir ("Subir"). According to Miss Zakharoff, Subir was a substantial dealer, who had other sources of heroin, and occasionally he bought from her for personal use when those sources were temporarily not available. Another was a woman identified only as "Diana", who was in the advanced stages of pregnancy. Miss Zakharoff said that, based on her experience of such matters, she thought Diana should be supplied rather than go through withdrawal at that stage. Other addicts who approached Miss Zakharoff were also supplied.
Looking at the four counts relating to Miss Cornford, the fifth and sixth charge supply to Subir. The counts relate to a few supplies, which according to Miss Cornford took place over a few days while Miss Zakharoff was in Sydney. The seventh and eighth counts charge supply to "a person whose name is unknown". The evidence relates the seventh count to several sales to Diana, and the eighth to a man unknown to Miss Cornford at the Hawker Shopping Centre. Each supply was made at the instance of Miss Zakharoff.
According to Miss Cornford's record of interview, the acts of supply referred to in counts five and six involved a "weight" on "a couple" of occasions, in count seven a half "weight" on "about three" occasions, and in count eight a half "weight" once. The learned Judge sentenced on the basis that each amount was a "deal".
The remainder of the heroin was consumed by the two accused. Miss Zakharoff surmised that Miss Cornford's habit was of a few "tastes" of between $25 and $50 per day. Compared with Miss Zakharoff's habit of one gram per day, Miss Cornford's dose was at least in the beginning very small.
The enterprise so far as it involved Miss Cornford continued only over a period of 6 to 8 weeks. Miss Cornford's parents lived in Canberra and her addiction became obvious to them. She was advised by her father to go to the police and see what form of treatment could be obtained, and her father himself spoke to a police officer. She went to the police and made a full statement to them of the situation. Both accused were at this latter date under police surveillance. The fact is however, that the charges made against Miss Cornford were based on what she told the police.
Miss Cornford has shown genuine contrition and has very satisfactory reports as to her progress in throwing off the habit.
The sentence imposed by the learned Judge was one of two and a half years imprisonment on the fifth count and imprisonment for eighteen months on each of the sixth, seventh and eighth counts, the sentences on those counts to be concurrent but to be cumulative on the sentence imposed in respect of the fifth count. The Judge fixed a non-parole period of two years. The head sentence and the non-parole period dated from 13 November 1986. His Honour stated that he had taken into account by way of leniency the plea of guilty and the degree of contrition and said that otherwise the sentences (i.e. including that of Miss Zakharoff) would have been substantially heavier. This statement in my view reflects error, because I cannot see, absent the two factors mentioned, "substantially" heavier sentences could be supported, at least for Miss Cornford.
It was submitted on behalf of Miss Cornford that, having regard to the mitigating factors mentioned by his Honour and others which, it was said, he should have taken into account, her sentence was excessive. The accumulation of the sentences was not specifically challenged, but it was not necessary for this to be done by way of argument. However a sentence is made up, it must be appropriate to the "criminal conduct", taken as a whole, of which an accused is convicted. (See Attorney-General v. Tichy (1982) 30 SASR 84 at 92-3.)
The question is, therefore, whether an effective
sentence of four years, with a two year non-parole period, was excessive. With respect to his Honour, I am of the view that it was.
In Jurcovic (1981) 6 A Crim R 215 at 220 I said, in connection with offences against the Poisons and Narcotic Drugs Ordinance 1978 involving heroin:

"Two factors seem uniformly to be regarded as important. One is the amount of the drug, in terms of pure heroin. The other is whether, supply being a purpose, the supply was to be for straight out commercial profit (the more serious case) or for financing the prisoner's own addiction; in the latter case part would doubtless be for his own use. In the last-mentioned type of case, five years' imprisonment is in general at or towards the top of the range, if the amount involved is small."

Miss Cornford was herself a heroin addict, who took no active part in distributing the drug, beyond carrying out the requests of Miss Zakharoff. The amounts involved were small, and apparently only "street" grade, and her involvement lasted only for a matter of six weeks or so. She was not a trader in any active sense, and was led back into the drug business by agreeing to keep the money that Miss Zakharoff wanted to leave with her and then only as a result of the money being accompanied by some drugs. Having regard to Miss Cornford's previous good record, her assistance to the police and her plea of guilty, and her hitherto successful rehabilitation, it seems to me that the sentence was plainly excessive. This is confirmed by an examination of the cases noted in Carter, The Australian Sentencing Digest (1985) at 803-24 and in the supplement thereto at 152-6.
There is a further matter of importance. It was Miss Cornford herself who terminated the enterprise and went to the police to tell them of the matters which became the subject of the charges against her. She did this in the hope of obtaining help in conquering her addiction. In such circumstances, the legislative purpose of eradicating or at least reducing reliance on drugs of addiction points to a lesser sentence for Miss Cornford than would otherwise be the case, so as to encourage others to do the same. A question of deterence of herself hardly arises. It seems to me that, having in mind the sentences imposed on Miss Zakharoff, the sentences for Miss Cornford were disproportionately large, and this suggests a failure appropriately to assess the mitigating factors affecting Miss Cornford.
In my view, if any prison sentence was appropriate it has just about been served. The sentence should be set aside and in lieu thereof a sentence imposed which permits her release as soon as this can be effected. She should be required to enter into a recognizance, with surety.
Miss Zakharoff was charged on the first four counts. The first count charges supply to Subir between 1 September 1985 and 30 September 1985. The second count relates again to Subir, but at a later point of time, namely between 1 December 1985 and 25 December 1985. The third and fourth counts charge supply to unnamed persons, identified in the evidence as Diana, and a woman known only as "Maud". The situation is very confusing, having in mind identical charges against Miss Cornford, but during a different period. As I have said, Miss Cornford did not become involved until the beginning of November 1985, and the third and fourth counts, to which I have referred, lay the charges as having occurred between September 1985 and 30 January 1986.
Miss Zakharoff was at the time of the offences 29 years old. She had come to Canberra from Sydney in January 1985 to receive methadone treatment, but in spite of that treatment she remained addicted to heroin. Her involvement with the sale of the drug started when she went to Sydney with a friend ("X") whose name has been suppressed, and with Subir, and others, and procured heroin on X's behalf, receiving a quantity of the drug for herself, apparently by way of commission, in the process. She helped X in a similar way on a number of occasions thereafter, and thus obtained the heroin which she and Miss Cornford sold or consumed in the way already described.
In her sworn evidence, which in several respects contradicted her record of interview, Miss Zakharoff said that the first visit to Sydney occurred in August 1985, and that her motivation for this visit was that she had been buying heroin from X and he had run out. She said that her "commission" was either free access to X's supplies or up to two "weights" for herself, and that she would sometimes buy two or three more "weights" on her own account.
According to her record of interview, Miss Zakharoff sold quantities of up to a "weight" every couple of days. Of those referred to in the counts charged, Miss Zakharoff said in evidence that she supplied Diana with a total of about three grams over four or five transactions, and Maud with a "deal" on one occasion. There is no clear indication of the amount supplied to Subir.
Clearly, Miss Zakharoff was a small-scale distributor of street grade heroin who dealt in the drug to support her own addiction. However, there is no doubt that she was more actively involved in dealings in heroin, and over a longer period, than was Miss Cornford, and that the former had a heavier addiction than did the latter. The fact that two of the four counts against her related to her supply to a well-known drug dealer is also a matter for consideration. On the other two occasions the total amount supplied was small.
After her arrest, Miss Zakharoff was of some assistance to the police. In her record of interview, she admitted the matters which formed the basis of the charges against her, and she identified others with whom she had dealt. This information was apparently of some value, although inconsistencies between her record of interview and her sworn evidence suggest that she was not completely candid as far as her own involvement was concerned. She pleaded guilty, but only at the trial, whereas Miss Cornford indicated at her committal hearing that she would do so. Her repentence seems to have been less than that of Miss Cornford, although his Honour was of the view that she was contrite, and stated that these matters had attracted a real, and not merely nominal, discount in her sentence.
His Honour sentenced Miss Zakharoff to three years imprisonment on the first count, and eighteen months on each of the second, third and fourth counts. He made the sentence for the second count concurrent with those for the third and fourth counts, but cumulative upon the sentence for the first count. The effective sentence was thus four and a half years. His Honour fixed a non-parole period of two years three months.
It was submitted on behalf of Miss Zakharoff that the offences of which she was convicted represented a pattern of transactions which formed a single episode, and that therefore a concurrent sentence should have been imposed in respect of each offence. I do not think that this conclusion is sound, or at least, not sufficient to cause us to interfere. True it is that the offences were similar, but they extended over a period of months, and involved a substantial number of separate purchases and sales. I do not think it can be said that his Honour made an error in principle in constructing the sentence in the way he did. As I have already said, in relation to Miss Cornford, the real question in a case such as the present is whether the sentence taken as a whole, can be supported.
In this connection, counsel for Miss Zakharoff conceded that her sentence prima facie falls within the range of sentences appropriate to a small-time dealer, but argued that insufficient weight was given to her assistance of the police, and to her addiction and prospects of rehabilitation.
In support of the first submission, reference was made to Golding (1980) 3 A Crim R 26, where the two accused received a 50% discount in sentence due to their activities as police informers. However, as the report makes clear (at 37), the work done by the accused in that case carried far greater weight in mitigation than the assistance rendered by Miss Zakharoff, which was at all events specifically taken into account by his Honour.
As to the second submission, Miss Zakharoff said, and there is nothing to dispute it, that she did not make any money out of her dealings in heroin. She said that the only people who do make money out of it are people who are not addicted. It was also urged on her behalf that imprisonment would be detrimental to her attempts to shake off her addiction, and the fact of conviction would be sufficient to deter her in future. However, although addiction explains Miss Zakharoff's conduct, it should not be assumed that that is an entire excuse. The legislature has chosen to impose severe penalties for the supply of drugs, irrespective of who is supplied, or by whom, and it is a matter of common knowledge that many drug dealers are themselves addicts who deal in order to support a drug habit. As was explained in Osenkowski (1980) 5 A Crim R 394 at 396-7, the legislative purpose, to which I have already referred, requires the deterrence not only of the accused, but also of others in the community.

It therefore seems to me that no error has been shown in his Honour's approach sufficient to justify this Court in varying the sentences imposed.
In relation to Miss Cornford, her appeal should be allowed, the sentence imposed set aside, and a sentence as will be ordered imposed instead.
The appeal of Miss Zakharoff should be dismissed.

JUDGE2

On 14 November 1986 the appellants were sentenced in the Supreme Court of the Australian Capital Territory for offences of supplying heroin contrary to s.4(2) of the Poisons and Narcotic Drugs Ordinance 1978. Each appellant had pleaded guilty to four offences, all of which were charged in the same indictment.

The appellant Cornford was sentenced to 2 1/2 years imprisonment on the fifth count and 18 months concurrent on the sixth, seventh and eighth counts, cumulative on the sentence imposed in respect of the fifth count. The sentencing judge fixed a non-parole period of 2 years.
The appellant Zakharoff was sentenced to imprisonment for 3 years on the first count and 18 months imprisonment on the second, third and fourth counts concurrent with each other and cumulative on the sentence imposed in relation to the first count. A non-parole period of 2 years 3 months was fixed. The head sentences and non-parole periods fixed in both cases were ordered to date from 13 November 1986. The appeals to this Court were against the severity of the sentences imposed.
I have had the advantage of reading in draft form the reasons for judgment of Fox J. I agree that the sentence imposed in relation to the appellant Cornford was excessive in all the circumstances. I further agree that the sentence imposed in relation to the appellant Zakharoff was within the exercise of a sound sentencing discretion and her appeal should be dismissed.
The factors which, in my view, warrant this Court's intervention in the case of the appellant Cornford are, first, the circumstances of her involvement in the supply of heroin set out in the reasons for judgment of Fox J. It is unncessary to repeat them. Secondly, weight should be given to the undisputed evidence that the appellant Cornford surrendered herself to the police and made a full statement about her involvement with the appellant Zakharoff. The charges against her were based upon what she had confessed to the police. It is an accepted principle of sentencing that co-operation with the police and encouragement of the offender to make reparation are relevant matters to take into consideration in passing sentence. In this respect I would adopt the observations of Wells J. in Golding v. The Queen (1980) 3 A Crim R 26.
The other factors which warrant a greater distinction from the sentence passed upon the appellant Zakharoff, which, as I have said, was appropriate in all the circumstances, are the appellant Cornford's genuine contrition, her plea of guilty, the fact that it was she herself who terminated the enterprise in the hope of obtaining help to conquer her addiction to drugs and her previous good record.
In my view, it would be appropriate to order the appellant Cornford's immediate release, if she is prepared to enter into a recognizance to be of good behaviour for a reasonable period.
Accordingly, the order that I would propose is that the appeal of Cornford be allowed, the sentences imposed upon her be set aside and in lieu thereof that she be sentenced to a term of 18 months imprisonment on the fifth count and a term of 6 months imprisonment on each of the sixth, seventh and eighth counts, such sentences to be served concurrently but cumulatively upon the sentences imposed in relation to the fifth count. I would further order that the appellant Cornford be released after she has served part of the sentence imposed upon her, namely on 13 June 1987, upon her entering into a recognizance self in the sum of $500 with one surety in the sum of $500, conditioned that she be of good behaviour for a period of 3 years; that during that period she be subject to the supervision on probation of the Director of Welfare of the Australian Capital Territory or some person appointed by him in that behalf; that she obey all reasonable directions of such person in relation to her residence, employment and associates; and that she accept such counselling as she may be directed to do in relation to drug use.
As previously intimated, I would dismiss the appeal of the appellant Zakharoff.

JUDGE3

Appeals against sentences imposed in the Supreme Court of the Australian Capital Territory.

The appeals were heard together. They were both against sentences imposed by Miles C.J. upon convictions of four counts of supplying heroin to another person. The eight counts were charged on the one indictment, and the two appellants were arraigned and pleaded guilty to each of the four counts and were sentenced at the same time, in November 1986. All the charges related to events which occurred in Canberra during a period of five months ending on 30 January 1986.
The appellant Debra Ann Zakharoff, who was born on 14 April 1956, had used heroin throughout the third decade of her life, but not continually. She came from Sydney to Canberra in 1984 in order to enter upon a course of treatment for her addiction, but she relapsed and during the period when the offences under present consideration were committed her use of the drug was habitual. During that period and for some time before September 1985 she was buying and selling heroin with the object of gaining income with which to pay for the heroin she consumed. Sometimes she bought from suppliers carrying on their trade in Sydney and sold at the generally higher prices which were being paid in the Australian Capital Territory. The four transactions to which the four counts relate were instances of the trading activities by means of which she sought to meet the very substantial expense of procuring the heroin she craved for her own use.
When Miss Zakharoff was questioned by police at the end of January 1986 she admitted what I have narrated and she furnished the police with information useful to them in their work of suppressing the use of heroin in the Australian Capital Territory. Thereafter until she was sentenced on 14 November 1986 she participated in a course of treatment for her addiction. She had obtained regular emloyment, but she had not succeeded in abstaining completely from the use of heroin.
On the first count Miss Zakharoff was sentenced to 3 years' imprisonment, on each of the other three counts to 18 months' imprisonment. It was ordered that the latter three terms be served concurrently, but the sentence of 18 months on the second count cumulatively upon the term of 3 years. The period before the expiration of which she should not be eligible for release on parole was fixed at 2 years and 3 months.
The appellant Lee Eris Cornford, who was born on 10 November 1957, had used heroin from time to time since was 19 years old. In 1985 her parents moved from New Zealand, where Miss Cornford had grown up, to Canberra. She was at that time living in Sydney, using heroin and in poor physical and emotional condition. She took up residence with her parents and, as she swore, abstained from heroin until November 1985 when she and Miss Zakharoff renewed an acquaintance which had commenced in Sydney. At the time when Miss Cornford and Miss Zakharoff commenced their association in Canberra Miss Cornford had left her parents' home and was living in accommodation which she shared with other young women. Miss Cornford held money and heroin left with her by the other appellant. She used some of the heroin daily and on several occasions supplied some of it to other persons at Miss Zakharoff's request. The four counts to which she pleaded guilty relate to instances of those activities during the 3 months when she was co-operating with Miss Zakharoff.
On 30 January 1986 Miss Cornford's father spoke to the police about her use of heroin, with her agreement. She then voluntarily disclosed to the police her involvement in the use and the handling of heroin during the preceding three months. She took that course because she had resolved to break her addiction and desired to seek professional help to that end.
On the first count against her (the fifth on the indictment) Miss Cornford was sentenced to imprisonment for a term of 2 and a half years, and on each of the other three counts to imprisonment for 18 months. It was ordered that the first of the terms of 18 months be cumulative upon the term of 2 and a half years, but that the three terms of 18 months be concurrent. Two years was fixed as the period before the expiration of which she should not be eligible for release on parole.
The quantities in which the appellants supplied heroin were said to be commonly of one fifth of a gram, but what proportion of what was supplied was pure heroin could not be ascertained. Those to whom they supplied heroin were themselves addicted to the substance, and themselves at times suppliers of the substance.
Miss Zakharoff had been convicted of breaking, entering and stealing in 1977. At the time she was sentenced she stood committed for sentence on a charge of larceny of about $7,000 as a clerk, alleged to have been committed in 1984. Both offences were taken to have been committed to obtain funds for the purchase of heroin. Miss Cornford had not been previously convicted.
In support of the appeal of Miss Zakharoff, Mr. Refshauge submitted that the aggregate period of imprisonment - four and a half years - and the minimum term - two and a quarter years - could be seen to be manifestly excessive by considering what might be regarded as a normal sentence for the offence of supplying heroin when committed by an addict engaged in trafficking on a small scale in support of her addiction, and then having regard to the strong claim to mitigation of punishment which Miss Zakharoff's willing disclosure of accurate and worthwhile information to the police justified.
In support both of the submission that the aggregate period of imprisonment and, more particularly, the minimum term were manifestly excessive, and of the submission that this court in exercise of the sentencing discretion in place of that against which the appeal had been brought should release Miss Zakharoff, Mr. Refshauge relied upon the evidence which had been placed before the learned Chief Justice of the course of treatment which she had been undergoing for cure of her addiction during 1986, and upon the evidence of the great risk that imprisonment for longer than about 6 months would be likely to result in her relapse into habitual use of opiates. There had been a failure to give to the interest of the community in reclamation of Miss Zakharoff from her addiction the relative value which it merited, according to the submission : the sentencing discretion had been too greatly influenced by considerations of deterrence and retribution.
If there had been an erroneous estimation by Miles C.J. of the relative weight to be accorded the considerations with which those submissions deal, it was not because his Honour overlooked any of them, or any of the evidence which was relevant to their evaluation. In his reasons for sentence he adverted to each of the considerations to which those submissions drew attention and stated how he weighed them and others in the exercise of the sentencing discretion. In particular, Miles C.J. acknowledged what he described as the "considerable force" of the submission that the interest of the community was best served by keeping Miss Zakharoff out of a prison environment in which recourse to heroin was likely and by keeping her in the treatment program which she could follow only if she were at liberty.
The conclusion to which his Honour came, that a sentence of imprisonment of more than four years with a minimum term of more than 2 years was required, resulted from what he described aptly as "a difficult and delicate balancing process". To show that a different result, involving a very short period of incarceration, would have been reasonable and not in violation of any principle, is not to show error in the sentence imposed. I find no evidence of error in the reasons for the sentence. And I cannot think the sentence to be manifestly excessive upon a consideration of all the circumstances. The maximum punishment of 25 years, while it is obviously not an indicator of the duration of the sentence appropriate in a case of this kind, is a clear legislative expression of faith in punitive deterrence as an instrument of policy in the community's response to the unauthorised use of drugs. The learned Chief Justice did not find in the circumstances of Miss Zakharoff's case justification to subordinate that policy, in quest of her rehabilitation, beyond the point at which he fixed her sentence. I am unable to conclude that he fell into legal error.
The grounds of the appeal by Miss Cornford, as expounded in submission, are similar to those advanced on behalf of Miss Zakharoff. Miss Cornford's case for leniency is stronger than Miss Zakharoff's. She had not been previously convicted, and her involvement in drug use in the Australian Capital Territory was not shown to have extended over more than three months. Her role in trade was subordinate to that of Miss Zakharoff and she approached the police to invite their consideration of her offences. Her prospects of breaking addiction to heroin were conceived to be better than Miss Zakharoff's : she was thought not to have used the drug since her arrest in January 1986 and was progressing satisfactorily through a program of treatment. The risk that further imprisonment will lead to her relapsing into drug use is at least as great as in the case of Miss Zakharoff. But in her case, as in the case of Miss Zakharoff, I am not persuaded that any error marred the exercise of the sentencing discretion.
There was a further submission advanced in support of the appeal of each appellant : that the sentences on the four counts should have been concurrent. Authority was cited which, in the submission of counsel, required that "offences that are of a similar character or ordinarily associated and that simply represent facets of one course of conduct" be not "ordinarily" the subjects of cumulative sentences when imposed contemporaneously : see Tania Amos v. The Queen (Full Court of this Court; unreported; judgment 6 February 1985); Edward James Amos v. The Queen (1985) 16 A Crim R 408; Attorney-General v. Tichy (1982) 30 SASR 84; The Queen v. Carey (1975) 11 SASR 575; Reg. v. Melville (1956) 73 WN (N.S.W.) 579.
When several convictions founded on a jury's verdict are the subjects of contemporaneous sentencing and any possibility exists that one or more, but not all of the convictions may be set aside on appeal, it is of great importance that the sentencing judge determine with care what, if any, provision is to be made that sentences be served concurrently. Whether or not that possibility does exist, concurrency of sentences may be required in order that an accumulation of sentences each of which is appropriate does not amount to a punishment of too great severity. When that possibility - of the setting aside of a conviction - does not exist, regard to the considerations which are stated by Wells J. in Attorney-General v. Tichy (1982) 30 SASR 84 at 92-93 is yet a means of guarding against the risk that an aggregate period of imprisonment which is inappropriate to the relevant circumstances will be imposed, as well as a means of ensuring, so far as possible, that the orders pronounced in sentencing can be seen by the community as appropriate responses to the several crimes under consideration:

"It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration."

Nothing in the passage is so important to keep in mind, in my opinion, as the first sentence thereof. As though to emphasise the truth of that sentence, Wells J. and the other two members of the Full Court of the Supreme Court of South Australia in Tichy's Case expressed the opinion that either concurrent or consecutive sentences would have been permissible in the case there under consideration. A similar conclusion might be drawn from a consideration of the reasons for judgment in the two cases named Amos, to which reference has been made.

In the particular circumstances of each of these appeals a variety of orders could without error have been made which would have resulted in the aggregate period of imprisonment imposed by the learned Chief Justice, in my opinion. These are in my opinion cases in which "the process of characterization" can lead to a number of "possible answers, each of which, in the hands of the trial judge, could be made to work justice".

I would dismiss both appeals.

[1987] FCA 299

05 JUNE 1987