R v Dean

[1999] QCA 378

99.378

COURT OF APPEAL

DAVIES JA AMBROSE J CULLINANE J

CA No 237 of 1999
THE QUEEN
v.

DEBRA JOY DEAN Applicant

BRISBANE
..DATE 08/09/99
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AMBROSE J: The applicant for leave to appeal against
sentence is a 34-year-old woman who, in October 1998, had
possession of something over 200 grams of methylamphetamine.

She was sentenced on 6 July 1999 to a term of five years' imprisonment with a recommendation for release upon parole after serving 18 months. The offence was a serious one because she was carrying about 100 times the amount specified in the third schedule.

The evidence disclosed that she was travelling from Brisbane to Western Australia and was at the Brisbane Airport for that purpose when she got sick and was discovered in a very serious condition in a toilet. She was taken to hospital and it was there discovered that a number of condoms which had been inserted internally had apparently leaked and methylamphetamine had been discharged into her vaginal area.

She gave a statement to the effect that she had met a man in Perth on one of a number of trips that she had made there and, after a discussion with him concerning her financial embarrassment, he had asked her whether she would be prepared to bring something from Brisbane back to Perth for a fee of $3,000. She agreed to do this. It is unnecessary to go into the details of the arrangement further.

She suspected that she would be bringing back something
illegal, she was a bit concerned about it but was persuaded
by the promise of payment of $3,000 to go ahead with it.
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Eventually, after a discussion with this man over the
telephone on the morning that she was to leave to travel to
Perth, she took possession of methylamphetamine and she put
some of it into condoms and inserted them into her vagina.
Another package was secreted in her luggage. The evidence
disclosed that, all told, she had in her possession 205
grams approximately of methylamphetamine. She pleaded
guilty to the offence and the sentencing Judge, as I have
indicated, imposed a penalty of five years' imprisonment
with a recommendation that she be eligible for parole after
serving 18 months.

She seeks leave to appeal not on the basis that the sentence was outside the range, which was agreed I think, in effect, to be somewhere within four years' imprisonment and six years' imprisonment, but on the basis that the sentencing Judge made errors discernible from his sentencing remarks in that he failed to make any, or at least any sufficient allowance for a serious physical condition that resulted to the applicant in the area of her vagina when this drug was released internally. It was also asserted that he wrongly assumed, from his sentencing remarks, that she must have been involved previously in this sort of couriering operation.

I must say, for my part, looking at His Honour's sentencing
remarks, I am unpersuaded that His Honour did forget about
or ignore or not give weight to the significant physical
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injury that the applicant suffered as the result of the
condom's discharging the methylamphetamine internally.
There was a good deal of medical evidence placed before him
from doctors and hospital reports, psychiatric reports and
so on dealing with these matters and, on my reading of His
Honour's sentencing remarks, he had them in mind when he
imposed the sentence, although he did not go into that
matter in any detail.

Stated shortly, and it is unnecessary to do more than that, she could easily have died as a result of the leaking of the methylamphetamine internally, had she not received urgent attention. As a consequence of the damage done to her internally, she will require vaginal dilation from time to time. She will suffer, and has suffered from a discharge of blood; however, there are reconstructive surgical operations which, if successful, would repair the damage that was done to her.

His Honour also indicated that he was not disposed to accept
matters advanced on behalf of the applicant to reduce the
seriousness of the offence to which she pleaded guilty. He
said, for example, "You are not, in my view, the innocent
that is advanced in the picture of you on your behalf," and
he observed that matters that had been presented on her
behalf were both overdone and not always accurate. He also
observed that the offence that she had committed was not
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that of a person who was naive and simply being used by
other people.

In my view, His Honour, in making those observations, made it clear that he would not increase the sentence or, as he said, "add to your punishment" in respect of the matters that he had referred to. He said that it was a serious crime and undoubtedly it was. The maximum penalty for this offence is imprisonment for 20 years, which is the same as the maximum penalty for trafficking, and this was a very large amount of methylamphetamine that she was transporting, for commercial purposes obviously.

In my view, I am unpersuaded that His Honour in fact did not
make allowance in imposing the sentence which he did for the
significant physical damage that was done to the applicant
when the condom containing the methylamphetamine leaked
inside her. It was conceded that the maximum sentence would
have been one of six years. In my view, for carrying 100
times the amount specified in the third schedule, had it not
been for the injury suffered by the applicant, His Honour
could well have been justified in imposing a sentence of six
years. What he did impose was something less than the
sentence at the higher end of the range and I am simply
unpersuaded that it has been demonstrated that His Honour
overlooked the injury suffered by the applicant in the
course of her criminal activity.
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His Honour was referred to a decision of this Court in The
Queen against Noble and Verheyden, which is reported in
(1996) Queensland Reports at 329. That was a case where the
real issue was one of disparity in sentence but this Court
there referred to an article by a Mr Rinaldi in (1984)
Criminal Law Journal at 244 and 246. That article really
was somewhat critical of a decision of the Court of Criminal
Appeal in Victoria in a matter of Fletcher. Fletcher was
also a case where the real issue was one of disparity in
sentencing persons, one of whom suffered an injury in the
course of the offence committed whereas the other one did
not.
The most recent consideration of this matter that I have
located is another case in the Court of Criminal Appeal in
Victoria in Barci against Asling (1994) 76 Australian
Criminal Reports at 103 and particularly at page 111. It
was a unanimous decision of that Court. It also was a case
involving an appeal based upon disparity of sentence where
one person was seriously injured and the other was not so
seriously injured in the commission of the offence. There
is an interesting statement of principle appearing at
page 111 of the report where in the judgment it was
observed:

"It is, we think, and as the Crown concedes, not a complete

answer to say that Barci brought his injuries upon
himself. The fact is that these very serious injuries
directly resulted from the commission of the crime
itself. For the rest of his life, those injuries will
serve as a savage reminder to Barci of his criminality
and, as such, they must fairly be regarded as
constituting some punishment for that criminality."

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That is consistent, in my view, with what this Court said in
Noble and Verheyden. However, in my view, it has not been
demonstrated that His Honour did not make due allowance for
the injury suffered by the applicant. I am unpersuaded, on
the material, that His Honour made any error in law or
overlooked any relevant matter advanced before him upon the
sentencing exercise and it is not, in my view, open to this
Court to embark upon a re-sentencing of the applicant on the
basis that perhaps a slightly more generous recommendation

might have been made with respect to eligibility for parole.

I would dismiss the application.

DAVIES JA: I agree. Mr Glynn did not suggest that the sentence was outside the appropriate range. He relied on the two errors referred to by Mr Justice Ambrose as requiring us to set aside the sentence and to re-sentence. As to the first of these, it is claimed from the transcript of argument that His Honour expressed the view that the injury could be taken into account.

Shortly after His Honour had said that, and only shortly
before His Honour delivered his sentencing remarks,
Mr Kimmins for the applicant urged His Honour to take into
account personal factors which seem, in context, to be

intended to include the injury which the applicant suffered.

His Honour then, in the first sentence of his judgment,

said that he would make allowance in the applicant's favour
for the personal matters so far as he felt they were
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justified. His Honour did not in terms refer to the injury
but I think His Honour was referring to that when he
referred to the personal matters. It is certainly not at
all clear, in any event, that His Honour had not done so and
it seems fair to conclude that His Honour took that into
account.

As to the second of these, His Honour did express some scepticism as to the extent of what was said on the applicant's behalf indicating that he thought that there was some exaggeration in submissions made on her behalf. But he then said that he would not add to her punishment because of that. In other words, he, being faced with uncontradicted submissions, was bound to and did accept those submissions.

For those reasons I would agree with Mr Justice Ambrose

that there was no error in either of the respects contended
for by Mr Glynn and I would refuse the application also.

CULLINANE J: I agree with what both of the other members of the Court have said. I think the application should be refused also.

DAVIES JA: The application is refused.

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