Cornford, L.E. v The Queen

IN "E FEDERAL COURT OF AUSTRALIA

1 )

AUSTRALIAN CAPITAL TERRITORY

I	No. ACT G 75 of 1986

DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN :

LEE ERIS

CORNFORD

Applicant

AND :

THE OUEEN

Respondent

MINUTE OF ORDEX

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 1 s 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
,

DTVTSION

GFXERAL

BETWEET :

LEE ERIS CORNTnRD

Applicant

AND :

TIE QUEEN

Respondent

CORAM: Neaves J.

U: 27 November 1986

REASONS FOR JUDGMENT

This is an applicatlon by Lee Eris Cornford (“the

applicant”) for

bail

pending

the

hearing

an appeal

Instituted by her in this Court against the severity of the

sentences

imposed

upon

her

the

Supreme

Court

the

Australian Capital Territory on 14 November

1986 for offences

against sub-s.4(2) of	the Poisons and Narcotlc Druqs Ordinance
7978 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

appllcant

supplied

a controlled

substance, namely heroin, to another person.

The first two

offences related to the supply

of heroin to one Abdul Rahim Bin

nohammed

3ubir.

The recipient

each

the

remaining

offences was a person whose name was unknown.

2 .

The applicant was sentenced in respect

of the flrst

offence to lmprlsonment for Lwo and

a half years

and, In

respect. of

each of the other

offences, to

imprisonment for

eighteen months.

The sentences of elghtecn months were to

served concurrently but cumulatively upon the sentence of two and a hdlf years so that the applicant was ef:ectlvely

sentencrd to imprisonment for four years.

A non-parole period

t v o p a r s wan

fixed.

A t the same time

the applicant was sentenced the

Suprcmc Court also sentenced one EcSra Ann Zakharoff

in respect

of four oFfences of supplying

a controlled substance namely

heroin.

the lcarned sentencing judge pointed out, although

there was evidencc

of criminal association between the two

offenders, the individual acts of the one offender were quite

separate from the acts

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 respcct

of each of the other three offences,

Imprisonment for eighteen months.

The sentences

of elghteen

months were directed to be served concurrently but cumulatively

upon

the

scntcnce

three

years.

The total

term

imprisonment was, thercfore, four and

a. half years wlth a

non-parole pcrlod of two years three months.

It appears from the remarks of the

sentencing ~udge

that the applicant and Miss Zakaroff had been heroin addicts

for many

years although

the

applicant had been successfully

rrs1stlng

her

addiction

for

somc

tlmc

before

cornlng

ranberra.

Mlss Zakharoff came

t o Canbcrra at the berJlnnlng of

?9R5 ln

ordcr to

try to bc placed on

a methadone programme.

Shi: llved with her mother at Hawker.

Thc applicant came to

Canberra to live

with her parents towards the middle of 1985.

She round employment with the Australian Federal Dollce	as a
typist.

Miss	Zakharoff began to use heroin regularly and

became part of a network of heroin users who

bought and sold

heroin among themselves. She made	a number of trips to Sydney
to purchasc heroin.

November 1985

the applicant moved away from her

parents' home.

She then renewed her acquaintance with

Miss

Zakharoff

whom

she

had

known

slightly

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 selllng 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

heroln and became involved with Miss Zakharoff in the supply

heroin to

a number of persons in Canberra.

The applicant's

room was uscd for the weighing and preparation of jndividual

packages of the drug for distribution. The sentencmg judge

arcepted that the amount supplied by the applicant on each of

4 .

the four occasions	to whlch the charges relate was one-flfth	of
a gram.

The applicant has appealed,

as of rlght, to this Court

pursuant to

sub-s.24(1) of the Fedcrll Court of Australia Act

1976 aqainst the sevcrlty of the sentences imposed on her.

The

qmeral

nature of the matters whlch will be raised

the

hearinq of the

appeal sufflclently appear from the grounds of

appeal which may

bc summarized as follows:

(1) That the senLencing judge erred

m that

failed to give sufficient weight had voluntarily given herself up to the police for the purpose of seeking help to free herself from addiction heroin to and

to the

fact that the applicant

consequent involvement in heroin

dealincj;

failed to give sufflcient or any

weight

the

fact

hat

applicant assisted the police in ending the network of herom

distribution in which	she	was
involved;

failed to give sufficient weight

to the fact that the applicant

was

not

involved

supplying

heroin

for

p ofit,

but

was

involvcd to

enable her to obtaln

heroin to satisfy her addiction;

failed to give sufficient weight

the

fact that since giving

herself

the

police

the

applicant

h d

substantially

rehabilltated herself;

fail4 to

glve sufficient weight

to thc

fact that the applicant

had no previous convictions;

(f) failed to

give sufficient weight

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 he sentences Imposed on the applicant as compared to the sentences imposed on Miss Zakharoff were excessive

that

they failed to

reflect

adequately the dlffercnces between the

applicant and Miss Zakharoff in relation

ta the seriousness of their

respective

involvement

therein

and

personal

mitigatlng 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 whlch 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 convlction and sentence

is that it will not be granted otherwise than in exceptional

circumstances .

Whether exceptional clrcumstances exist in

any case will depend

upon the facts

of that case:

gencral prescription has been, or can

be, lald 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 matter?.

He referred t o

the

following

clrcumstances

- that the

applicant

had

voluntarily surrendered herself to the police; that she had

given the police information which led to the arrest

other persons; that shc had pleaded guilty to the offences;

that she had

no previous convictions; that the quantlty of

heroln thc subject of the offences

was

not large; and that

the applicant's involvement was to satlsfy her addlction and

not

for

commerclal

gain.

Counsel

placed

substantial

emphasls upon the fact

that the appllcant between 31 January

1986 and 12

November 1986 had been resldent continuously

the Karralika Drug Rehabilitation Centre and

had

there

undertaken a drug free reha5ilrtation course. He referred

the

evldence

before

the

sentenclng

judge

that

the

applicant had progressed to the

fourth of the

five levels

through which resldents at that centre

pass

tswards

rehabllltating 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 IS well settled that on the hearing of an appeal

agalnst the severity

of a

sentence the Court will not

interfere simply brcause

it 15 of the view that the sentence

severe

t h m

would

hai.Je

imposed. It will

7 .

interfere only if it

be shown that the sentencing judge was

error

In acting on a

wrong

prlnciple

misunderstanding

wrongly

assessing

some

salient

feature of the evidence.

me crror may

appear in what the

sentencing judge sald

passing sentence or the sentence

may ltself be so cxcessive as to manifest error: see

Tait and Bartlev (1979) 2 4 A.L.R.

473 at p.476.

It may

accepted

for

the

purposes

thls

application that there

are

matters that the appllcant may

properly put to the Court for its consideration

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

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 sald that this was in the

interests

not

only

the

applicant

but

society

generally.

Evidence was given before the sentencing judge

Mrs Zsuzsa

Reiner, the Acting CO-Director of the Karralika

. d .

Drug

Rehabilitation

Centre,

as to

the

treatment

and

counselling

available at the

Centre.

Relner

on 20

November 1986 swore

an affidavit which

has been filed on

behalf of

the applicant in the present proceedlng.

In her

evidence to the

Supreme Court Mrs Reiner said

that

the

applicant had had difficulty with the programme at the

beglnning 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 appllcant would reach the final level in the programme, known as "Candleate Out" level, within a month from the date on which the evldence 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

complete if she

is enabled to return to Karralika

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 elther living at Karralika or away from support from Karralika."

the

Supreme

Court

Mrs

Reiner

expressed

the

opinlon

that a custodial

sentence

would

jeopardize

the

applicant's

full

rehabilitation

because

the

continuous

counselling

provided

at Karralika

would

not

hen

avallable to her. She summarlsed 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 Relner has, rn

her affidavit, again expressed the vlew

that imprisonment

would jeopardize the overall prospect

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

the applicant and not

the confirmation

of her drug

addiction

which had been said by counsel to be a likely

consequence of her being sent to prison. However, weighing

all of

the

circumstances

his Honour

concluded

that

custodial sentence was the only appropriate sentence.

While recognlsing 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

custodial sentence. Conscious

a s

his Honour was

the

importance to the applicant and to the community of the need

for rehabilitation,

hls

Honour was unable to regard that

circumstance as requiring that

a sentence other than a

custodial

sentence

imposed.

Can

it, in

the

circumstances, be

regarded. as providing

the

exceptlonal

circumstance necessary to warrant the granting

of bail?

Counsel

for

the

applicant

has urged

upon

everything that could be

s a d in favow

of the granting of

bail.

I have given anxious consideratlon to the matters put

and

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

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 a true copy of the Reasons for Judgment herein of the Honourable Mr Justice

Neaves

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

[1986] FCA 556

27 Nov 1986