R v Phillips

[1993] QCA 427

IN THE COURT OF APPEAL [1993] QCA 427

SUPREME COURT OF QUEENSLAND

Appeal No. 191 of 1993

Brisbane

[The Queen v. R.J. Phillips]

T H E Q U E E N

v.

RODNEY JOHN PHILLIPS

(Applicant)

Pincus JA
Mr Justice Ambrose

Justice White

Judgment delivered 25th October, 1993
Separate reasons of Pincus JA, Ambrose J. and White J. all
concurring as to the order made

ORDERS THE APPLICATION FOR LEAVE TO APPEAL IS GRANTED. APPEAL ALLOWED. NO INTERFERENCE WITH THE SENTENCE OF 3 YEARS IMPRISONMENT IMPOSED IN RESPECT OF EACH OF THE OFFENCES TO WHICH THE APPLICANT PLEADED GUILTY. SET ASIDE THE RECOMMENDATION THAT THE APPLICANT BE ELIGIBLE FOR PAROLE AFTER SERVING 12 MONTHS IMPRISONMENT AND IN LIEU WOULD RECOMMEND THAT HE BE ELIGIBLE FOR PAROLE AFTER SERVING SIX MONTHS' IMPRISONMENT BUT THAT SUCH PAROLE AS MAY THEN BE GRANTED BE SUBJECT TO CONDITIONS THAT: I) HE REFRAIN FROM BEING IN POSSESSION OF ANY DANGEROUS DRUG SPECIFIED IN THE DRUGS MISUSE ACT EXCEPT AS MAY HAVE BEEN LAWFULLY PRESCRIBED FOR HIS USE BY A LEGALLY QUALIFIED MEDICAL PRACTITIONER, AND II) HE UNDERGO DURING THE PERIOD OF HIS PAROLE SUCH MEDICAL, PSYCHOLOGICAL AND PSYCHIATRIC EXAMINATION, TREATMENT, COUNSELLING AND ADVICE FOR HIS DEPENDENCE UPON HEROIN OR UPON ANY OTHER DANGEROUS DRUG SPECIFIED IN THE DRUGS MISUSE ACT AS MAY REASONABLY BE REQUIRED BY HIS COMMUNITY CORRECTIONAL

O	FFICER.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - Supply and possession of heroin - report in relation to rehabilitative and educational facilities for drug dependent persons in correctional institutions - effect of availability of such facilities in calculating recommendations for parole.
Counsel:	Mr B.G. Devereaux for the Applicant Mr P.J. Callaghan for the Respondent
Solicitors:	Legal Aid Office for the Applicant Director of Prosecutions for the Respondent
Hearing date:	10th August, 1993 and 5th October, 1993

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 191 of 1993.

Brisbane

Before Pincus J.A.
Ambrose J.
White J.

[R v. Phillips]

T H E Q U E E N

- v -

RODNEY JOHN PHILLIPS

(Applicant)

REASONS FOR JUDGMENT - PINCUS J.A.

J udgment delivered 25/10/93

I agree with the reasons of Ambrose J. and the orders his Honour proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 191 of 1993

Brisbane

Before Pincus JA.

Ambrose J.

White J.

[R. v. Phillips]

THE QUEEN

v.

RODNEY JOHN PHILLIPS

(Applicant)

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 25th October, 1993
This is an application for leave to appeal against a sentence of imprisonment imposed upon the applicant on 14th May 1993 when he was convicted upon his plea of guilty to two offences under the Drugs Misuse Act. Each of the offences was committed on 23rd September 1992. The first was the supply to an undercover police officer of 0.419 grams of heroin. The second was unlawful possession of 0.17 grams of heroin.
The applicant spent two weeks in custody prior to sentence.
For each offence he was sentenced to imprisonment for three
years to be served concurrently and it was recommended that he
be eligible for parole after serving twelve months'
imprisonment.
The applicant has a criminal history as a young man. At 19 years of age, he was convicted of robbery and sentenced to two years' imprisonment. At age 22, he was convicted of being in possession of a prohibited plant and a utensil used for smoking it.
From age 22 to age 33 (his age at date of the commission of the offences, the subject of this application), he was convicted only of two street offences of a minor nature.
In 1991 after failure of a side-show business in which he was engaged, the applicant became addicted to heroin. At the time of the sentences in this case, he was a single unemployed man with no fixed residence.

In September 1992, he was persuaded by a person who had supplied him with heroin for his own use on previous occasions, to supply some heroin to an undercover police officer on the basis that the police officer was his friend who wanted to purchase heroin for his own use. That supplier, who was also addicted to heroin, was anxious to persuade the applicant to make the supply so that he might obtain "a taste" to feed his own addiction. The applicant supplied the police officer with the heroin, the subject of the first offence, upon hotel premises for the sum of $1,500. When that supply had been effected other police officers, working in conjunction with the undercover police officer, arrested the applicant who eventually admitted that he also had heroin at his residence and subsequent police investigation found the quantity of heroin in his residence, which was the subject of the second offence.

The uncontested case for the applicant is that he was not in any way a dealer or regular supplier of heroin but merely took the opportunity given to him by his supplier to sell most of the heroin that had been supplied to him for his own use only a short time previously for a sum that would reimburse him for the cost of that heroin. He had already used some of it to satisfy his own addictive needs and the balance, after disposing of the 0.419 grams to the undercover police officer, he intended to use for his own purposes.

The appeal record gives no indication of the extent of the applicant's addiction to heroin; what, if any, steps he has taken to overcome that addiction; or what, if any, prospects there are for his obtaining treatment, counselling and advice to assist him in overcoming that addiction.
He has been in custody at Sir David Longland Correctional Centre for a little over five months since sentence.

We are informed that there are counselling and treatment facilities available for heroin addicts in the custodial institution in which the applicant is currently held and also at Borallon Correctional Centre to which it is likely he will be transferred; he was persuaded by his supplier to supply heroin to an undercover police officer and there is no suggestion that he would otherwise have supplied that drug to another. The circumstances indicate that the applicant was given the opportunity by his heroin supplier (or one of them) to sell some of the heroin he had recently purchased for his personal consumption to enable him to pay for it. He succumbed to this temptation.

Experience shows that many persons dependent upon drugs, supply dangerous drugs to other drug dependent people to support their own dependency. Such suppliers occupy a significant position in the distribution system for dangerous drugs and must expect condign punishment if the circumstances warrant it. On the other hand, the nature of the treatment and counselling facilities in correctional institutions leads one to conclude that the imposition of a custodial sentence without more, will not in some cases necessarily be to the best advantage either of the community at large or of the drug dependent supplier.

The court has been supplied with information by officers of the Queensland Corrective Services Commission concerning the availability of counselling and treatment facilities for drug dependent persons at both the Sir David Longland Correctional Centre and the Borallon Correctional Centre.
Ms Anderson the Manager Programs for the Sir David Longland Correctional Centre said that more than fifty percent of persons confined within that institution had a problem with drug or alcohol abuse. At the present time there are more than one hundred prisoners who have such a problem but the centre has only five counsellors none of whom it seems has yet had specific training in the treatment and counselling of drug dependent people. Ms Anderson said that people who came into jail had usually "had a pretty disadvantaged life and have multiple problems. Drug and alcohol would just be one of them". She was unable to say whether counselling such people is effective in assisting them to overcome their dependency problems.

There is an education program designed to give people information about drugs and alcohol abuse designated Drug Arm. She said that regular testing of people selected at random in the Correctional Centre occurs about twice a year. It is unclear whether this administrative procedure assists in the rehabilitation of persons with drug or alcohol dependency. It seems that prisoners may seek instruction from the Drug Arm organisation and their voluntary participation in this instruction system will be taken into account upon any parole application they may make.

Mr Sax is the Programs Manager for Borallon Correctional Centre. He expressed the view that probably about eighty percent of prisoners have had their anti-social behaviour influenced by alcohol or drug abuse and that a significant proportion of people in the Borallon Correctional Centre have drug dependency problems. He summed up the facilities available at the Borallon Correctional Centre for their rehabilitation from drug dependency in the following terms:-

"The programs that are offered within Correctional Centres are low intensity education programs. They are not treatment programs in the sense that a person can for example go into a therapeutic community and be contained within a supportive environment for a protracted period of time receiving intense counselling directed at behaviour change. We're not in the position to offer a therapeutic community. What we are offering in our correctional centres are low intensity essentially drug education programs."

Mr Sax was unable to express any opinion as to the effectiveness of the drug education programs available in the Borallon Correctional Centre. He said that at his centre there was a qualified counsellor whose specific function was to deal with drug and alcohol dependency. She has previously worked at Biala and has maintained contact with that organisation; we are informed that she is a registered psychiatric nurse. He said that if possible the prisoners in Borallon Correctional Centre are referred to Biala when appropriate.

Mr Sax pointed out that if a prisoner commences a program to control his drug dependency while within the Correctional Centre which lacks significant treatment facilities, there is power under s.69 of the Corrective Services Act 1988 to transfer that person whilst in custody to a Community Corrections Centre, such as Gwandalan, from which he may be permitted to attend regularly at the alcohol and drug dependency centre at Biala and may also be permitted to receive professional assistance to overcome his dependency from persons not connected with correctional institutions.

Mr Baker the co-ordinator for the "Substance Abuse Team" within the Queensland Correctional Services Commission gave evidence about treatment and counselling facilities available to prisoners within the Correctional Centres of Queensland generally. He said that random drug tests performed upon prisoners within the Correctional Centres indicate that more than fifty percent return positive tests. He said that the Commission does have links with the Biala Alcohol and Drug Dependency Centre which currently has "one of their staff actually going into one of our centres" in connection with a drug treatment program.

From the information placed before this court it seems that for whatever reason (including no doubt the significant costs involved) there are at the present time very limited resources available in Correctional Centres in Queensland for regular and intensive treatment and counselling of drug dependent persons who are motivated to overcome their dependence. It would seem also that at the present time dangerous drugs are sufficiently available to prisoners within Correctional Centres to result in more than fifty percent of them randomly tested for drugs at any time showing positive test results.

It seems then that persons in custody motivated to overcome their dependency upon dangerous drugs may well be subjected to greater pressures to maintain their dependency within the Correctional Centres than would be the case outside those centres. It seems that education programs concerning the dangers of drug abuse within the centres, while they may be of assistance to persons not significantly dependent upon dangerous drugs, may be of limited assistance to persons who are significantly so dependent and only moderately motivated to overcome that dependency.

Upon the facts of this case, the sentence of three years' imprisonment would not seem manifestly excessive for an offender who voluntarily supplied an unknown person with heroin in a public hotel for the price of $1,500. However, in the circumstances of the procurement of this particular supply and having regard to the dependency of the applicant upon heroin, I would set aside the recommendation that the applicant be eligible for parole after twelve months and in lieu recommend that he be eligible for parole after six months, and further recommend that, if granted, such parole be conditional upon the applicant during that period of parole:

i.   refraining from being in unlawful possession of any dangerous drug, and undergoing recommended treatment and counselling for his dependence upon other dangerous drugs. If having been granted parole upon those conditions, the

applicant fails to comply with them it could not be said that his imprisonment for the balance of the term of three years imposed by the learned sentencing Judge would be manifestly excessive.

I would grant the application for leave to appeal.
I would allow the appeal.

I would not interfere with the sentence of three years'

imprisonment imposed in respect of each of the offences to which
the applicant pleaded guilty.

I would set aside the recommendation that the applicant be eligible for parole after serving twelve months' imprisonment and in lieu would recommend that he be eligible for parole after serving six months' imprisonment but that such parole as may then be granted be subject to conditions that:

i)    he refrain from being in possession of any dangerous drug specified in the Drugs Misuse Act except as may have been lawfully prescribed for his use by a legally qualified medical practitioner, and

ii) he undergo during the period of his parole such medical, psychological and psychiatric examination, treatment, counselling and advice for his dependence upon heroin or upon any other dangerous drug specified in the Drugs Misuse Act as may reasonably be required by his community correctional officer.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 191 of 1993

Brisbane

Before Pincus JA.

Ambrose J.

White J.

[R. v. Phillips]

THE QUEEN

- v -

RODNEY JOHN PHILLIPS

(Applicant)

REASONS FOR JUDGMENT - WHITE J.

Judgment delivered 25/10/93

The facts and circumstances giving rise to this appeal are set out in the reasons for judgment of Ambrose J., with which I agree, and with the orders which he proposes. This case demonstrates concerns which a court will often have when called upon to sentence particularly for drug offences when the offender is drug dependent or addicted. The offending behaviour is often as a consequence of the drug dependence and not otherwise for gain. The evidence before this Court is that prisoners in correctional centres in Queensland when randomly tested returned a fifty percent positive result for illegal drugs. This must raise doubts as to the utility of a term of imprisonment in cases such as the present if the rehabilitation of the convicted person is accepted as one of the aims of that imprisonment.

The evidence set out in Ambrose J.'s reasons suggests that rehabilitation programmes offered in Queensland correctional centres for offenders who are drug dependent or addicted and who are minded to participate, are still in their infancy and no data as to their effectiveness is presently available. Given the large numbers of crimes committed by offenders as a consequence of their drug dependence or addiction it is to be hoped that efforts would be made to make effective available drug treatment programmes for offenders in prisons.