Davis, Heather Ann v The Queen

[1977] FCA 60

C r l r n n a l lair - appeal agalns-i; sentence - sentence d ispropor t iona te .

I-Ieather knne - Davls 17. h e Oueen

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Coram:	Bowen C. J. , Prailki and St.Johi? JJ.
Sydney

1 4 t h September, I ' 977

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-- Ill W!E FYBl??G COI!?T - C1' ?UC??~. i l iA - 1 1

V.oRTUSml .TS!??TTORY.. . DISTFiCT RE'XSTFX	)	ljo. NTG .b.. . of 1977
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GEYEPJL.. ........ .. D l V I 5 T O J

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On appeal from the Sup'reme Court of

the Northern Terr i tory of Aus t ra l ia

-- 3ETi:EX;;I.i ........ ........ ........ ........ .. . HEATHFB AI\IhTII DAVIS

........ ........ ........ ...... Appellact

.	........ ........ ........ .......
THE QUEEN'

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

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

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

SUDGE(S) X%i!!G 033m : Bowen C. J. , Pranki *and S t . John JJ.

DATE OF 0Ri)I;ii : 14th September, 1977

M!FiX iL4DE : Sydney

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3 . Sentence o f the Northern Terr i tory Supreme Court s e t

aside and i n l l e u t h e r e o f d i r e c t that tne appe l l an t be

a. sentenced to imprlsonrnent vnth hard labour f o r 12 calendar

months and not be e l l g i b l e for naro le untd 7 months o f ~~- ~

8. the sentence have bee: served. this^ sen tence t o da t e from

1 st March 1977.

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IN THE FEDERAL COURT OF AUSTRALIA	)
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NORTHERN TERRITORY DISTRICT --- REGISTRY No. NTG 4 of 1977

---I-- GENEPUL DIV SION -I

On appeal from the Supreme Cour7; of

the Northern Territory of Australia

BETWEEW -: -- HEATZ3S AI'JRTF: DAVIS

Appellant

- AI\n : THE QUEEN

Respondent

CORAM: Bowen C. J. , Franki and St. John JJ.

14th September,	1977
J U D G M E N T

Heather Anne Dams was, on her own plea o f gullty.

convicted of an offence agalnst s.5(1) of the Prohiblied Drugs

Ordinance 1963 (as amended) of the Northern Territory. That

section provides as fol lows:

"A person shall not manufacture,.prepsre, use,

sell, dispose of	or have in his possession	a
prohibited drug.

Penalty: Eight hundred dollars	or imprisonment
for two years, or bothtr.

Several drugs are listed in the Schedule to the Ordinance as

prohibited drugs, including heroin. In this case the drug

was heroin and the mount involved was 4.5 grammes.

On 1st Narch 1977 Nlss Dams was sentenced by a Judge

of the Suprerne Court of that Territory to imprisonment with hard

i labour for 18 calendar months with a non parole period of 10

months. From that sentence she appeals to this Court on the

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ground of i t s s e v e r i t y and through her Counsel .makes two maln

submlsslons i n support of her appeal. The f l rs t submission

i s t h a t t h e l e a r n e d t r i a l Judge sel texced her for tin offence

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which she d id no t commit, namely, an offence under s.233B

of t h e Cu.stoms A=-t 1901. C e r t a i n p a r t s of t h e Judgment were

pointed to In support of that submlssion. After careful

considerat ion we re jec t the submiss ion as the words used are

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equivocal and do not show t h a t t h e t r i a l JLidge e r r e d i n t h a t

way. The second submission i s tha t t he sen tence o f 18 months

is manlfest ly excessive havlng regard to the rnaxlmum s5atence

ava i l ab le , t he c i r cumtances	i n which the offence	was	committed,
and other re levant factors .

There is some d i f f l c u l t y i n a s c e r t a i n i n g t h e p r e c l s e

f a c t s founded by the l ea rned t r l a l Judge Secause Miss Dsvis'

vers ion was g i v e n i n p a r t by h e r Counsel from t h e Bar t a b l e .

There was also before the Court a record o f interview wnth

Mlss Davis and appa ren t ly h i s Honour had before him a t r a n s c r l p t

o f c o m i t t a l proceed-ings f o r an offence under the Customs Act

1901 which was not proceeded with. In her record o f intervie-tr

wi th an of f icer of the Narcotics Bureau, Miss Dams denied tha t

a t the t lme o f col lect ion she had knowledge t h a t line parcel she

: col lected contained heroin. The learned t r i a l Judge, i n s e n t e n c i n g

h e r , s t a t e d "1 an a f r a l d I can reach no conclusion other than

t h a t you lmew you were picking up drugs to be used by o thers

1	and	you	d id not	care	one way o r the	other	whether	it was heroln.	I .
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Shor t ly , Mlss Davist version was tha t she had become , I

f r i end ly wi th a couple who l ivsd toge ther and were known as

Mr. and IWs. Simpson. She knerr tha t bo th of them used heroin.

On t h e day of the offence, Mr. Slmpson had asked he r t o c o l l e c t

f o r him a parce l a t t h e TAA k l r Terminal a t Darwin addressed

t o one E. Osborne. It was expla lned to her that ?b. Slmpson

d ld no t w i sh to co l l ec t it himself because he was employed a t

tha t t e rmina l and would be known t o the persons having custody

of the parcel and would a l s o be known not t o have the name of

Osborne. There was no evldence other than that her motives

were of friendship o r c h a r i t y and c e r t a i n l y no suggestlon tha-t

she was actusted by persogal gain o r had I n mind making some

p r o f i t . The quantity of heroin would, we ars t o l d by t h e Crown,

anount t o a supply for two people for some weeks. The learned

t r l a l Judge found: I1Tnat i s a considerable amount of heroin,

You t o l d t h e i n v e s t i g a t l n g o f f i c e r s you do not personal ly use

heroin. You d e c l i n e d t o say riiiether you had taken It i n t h e

past. There i s no suggestion i n your case that you a r e e i t h e r

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a ussr o r an addict o r t h a t t h e h e r o i n was for your own purposes."

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' I A t the t ime of the offence Miss Davis was 8 s ing le

woman, a native of New Zealand, on a working holiday ln Australiz.

She had been educated to mat r icu la t ion s tandard and was, a t

the time of sentence, twenty years of age.

The l e a r n e d t r i a l Judge expressed the opinion that

r e h a b i l i t a t l o n would not be achieved by lmposing a pr i son

sentence and i n imposmg the sen tence re fer red to the fac t that

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it vas not rare to find Ilyoung women playlng their part in the

transportatlon or distributlon of this drug . . . l r . Hls Honour

then referred to "this loathsome traffic" and that the indicatlol

was that the drug had come from an area in South East Asia

known as the ltGolden Triangleq1.

It is to be noted that Niss Davis took no part

in the transportation o€ the drug from overseas to Australia,

nor was there evidence that her action might lead to the

corruption of persons who were not already users. Tnat, of

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course, assumes that the Simpsons intended to use the drug

themselves and not to sell it. IfIiss D~vis had no previous

convictions relevant to sentence in this instance. Her action

vas casual agd there was no suggestion of any connection vxth

traffickers in drugs. Section 5 of the Ordinance covex a large

variety of activlties, sone of which would be necessarily regarded

more seriously by a Court than others. For example, selling

in clrcumstances leading to corruption of others would be regsrded

more serioysly than being in possession for onefs own use.

Manufacture, particularly on a large scale, f o r distribution

would in most cases merit the maximum sentence.

In exerclsing its jurisdictlon to hear appeals against

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sentence, this Court will not interfere with the discretion

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, .	l	exerclsed by the learned trial	Judge unless satisfied that
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in some way his discretion miscarrled, or the exercise of it vas

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1 unsolmd or unreasonable (Harris v. The Queen (1954) 90 C.L.R. 652;

i Kovac v. The Queen, Federal Court of Australia 1/9/77, unreported).

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Having regard to the penalties provided under

the Customs Act, the maxlmum sentence provided by s.5 of the

Ordinance is n o t high. However, lt must still be regarded as

the maximum and the sentence imposed n the prisoner in this

instance was seventy flve per cent of the maximum gaol sentence.

A s has been mentloned, the section lncludes selling and

manufacture which appear more apt to attract the maximum than

possession. Having regard to the particular circumstances

of thls case, vre are of the view that the sentence is t o o

severe. In our opinlon, no error of fact or law has been

shown but the sentence is disproportionate to an extent

which calls for our intervention. Mlss Davxs has already

served 6 months. The order of the Court will be that the

sentence of the learned trlal Judge be set aside and there be

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substituted a sentence of 12 months wlth a non parole perlod

of 7 months. The subszituted sentence is to date from

l st March 1977.

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