Cornford, L.E. v The Queen

[1986] FCA 556

IN "E FEDERAL COURT OF AUSTRALIA	1 )
AUSTRALIAN CAPITAL TERRITORY	I
I No. ACT G 75 of 1986
DISTRICT REGISTRY	1
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 I

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 of an appeal

Instituted by her in this Court against the severity of the

sentences imposed upon her in the Supreme Court of 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 in each of 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 Se

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

of t v o p a r s wan fixed.

A t the same time as 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. As 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 of 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, to

Imprisonment for eighteen months. The sentences of elghteen

months were directed to be served concurrently but cumulatively

upon the scntcnce of three years. The total term of

imprisonment was, thercfore, four and a. half years wlth a

non-parole pcrlod of two years three months.

3

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 to

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.

In November 1985 the applicant moved away from her

parents' home. She then renewed her acquaintance with Miss

Zakharoff whom she had known slightly in 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 of

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 on 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 o the fact hat he

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 in supplying

heroin for p ofit, but was

involvcd to enable her to obtaln

heroin to satisfy her addiction;

failed to give sufficient weight

to the fact that since giving

herself up to the police the

applicant h d substantially

rehabilltated herself;

fail4 to glve sufficient weight

to thc fact that the applicant

had no previous convictions;

5.

(f) failed to give sufficient weight

to 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 in 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: no

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

6.

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 of

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 at

the Karralika Drug Rehabilitation Centre and had there

undertaken a drug free reha5ilrtation course. He referred

to 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

is more severe t h m it would hai.Je imposed. It will

7 .

interfere only if it be shown that the sentencing judge was

in error In acting on a wrong prlnciple or in

misunderstanding or in wrongly assessing some salient

feature of the evidence. me crror may appear in what the

sentencing judge sald In passing sentence or the sentence

may ltself be so cxcessive as to manifest error: see v.

Tait and Bartlev (1979) 2 4 A.L.R. 473 at p.476.

It may be accepted for the purposes of thls

application that there are matters that the appllcant may

properly put to the Court for its consideration on 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 of 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 of the applicant but of society

generally.

Evidence was given before the sentencing judge by

Mrs Zsuzsa Reiner, the Acting CO-Director of the Karralika

. d .

8.

Drug Rehabilitation Centre, as to the treatment and

counselling available at the Centre. Mr 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 be

complete if she is enabled to return to Karralika

to 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."

In the Supreme Court Mrs Reiner expressed the

opinlon that a custodial sentence would jeopardize the

applicant's full rehabilitation because the continuous

. 1 .

9

counselling provided at Karralika would not hen be

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 of

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 of

the applicant and not in 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 a

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 a

custodial sentence. Conscious a s his Honour was of the

10

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. be 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 me

everything that could be s a d in favow of the granting of

bail. I have given anxious consideratlon to the matters put

to me and to 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 to 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