R v Stephens

[1994] QCA 291

IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND [1994] QCA 291

C.A. No. 169 of 1994

Brisbane
[R. v. Stephens]

BETWEEN:

T H E Q U E E N
v.

ANGELA MARIS STEPHENS Applicant

Fitzgerald P. McPherson JA. Ambrose J.

Judgment delivered 12/08/94
Judgment of the Court

Application for leave to appeal against sentence granted. Appeal allowed to the extent that the applicant be recommended for parole immediately. Sentence imposed below otherwise stands.

CATCHWORDS:CRIMINAL LAW - Sentence - applicant involved in large scale and sophisticated marijuana cultivation - involvement due to coercion by violent husband - witness to murder of a man who had raped her - testified for the Crown in resultant prosecutions and placed on witness protection program - applicant a 24 year old woman with a tragic background - sentenced to 3 years imprisonment with a recommendation for parole after 9 months - whether recommendation took into full account applicant's personal circumstances - whether manifestly excessive

Counsel:Mr. G. Long for the applicant
Ms. L. Clare for the Crown
Solicitors:Legal Aid Office for the applicant
Director of Prosecutions for the Crown
Hearing Date:02/08/94

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 12/08/94

This is an application for leave to appeal against a sentence imposed in the Trial Division on 2nd May 1994. The applicant was convicted on her own plea of producing a dangerous drug between 1st January and 29th May 1993, in that she was then involved in the cultivation of marijuana in excess of 500 grams.

The applicant, a twenty-four year old female with no prior convictions, was sentenced to imprisonment for three years with a recommendation that she be considered for release on parole after serving nine months.
The applicant was a worker on a marijuana plantation at Gin Gin over the period to which the charge related. Although she was actively involved, hers was not a leading role. She had worked in a massage parlour for one of her co-accused and she went to the plantation to work after the massage parlour was closed.
While she was there, she witnessed a killing which terrified her. On her account, the killing was carried out by her then boyfriend and the victim was another male at the property who had raped her. It was submitted for her that she was a virtual prisoner and extremely frightened by her situation. While she was not physically confined, it is not difficult to conclude that she was under economic and psychological constraints.

On the other hand, the marijuana cultivation in which she was working was a very sophisticated operation, which was well financed and organised. A very large amount of marijuana was involved. The property was about 28 hectares and included a dam, caravan and demountable living quarters. Most of the cannabis was grown, dried and stored in a large shed, which was ostensibly a hay shed but had a translucent roof. Bales of hay were stacked high around it to avoid detection, and it was within a six foot high fence together with a guard dog. Sixty or seventy kilograms of marijuana were found in the shed. In addition, there were three kilograms of cannabis seeds located together with seven thousand plants, ranging from seedlings of thirty centimetres to harvested and unharvested plants of three metres. Machinery found included tractors, water pumps, irrigation systems, fans and lights, radio telephones, radio scanners and firearms.

Documentation on the Gin Gin property led police to a storage shed at Capalaba where further cannabis was found stored; forty-eight one pound bags of the drug were stored in a forty-four gallon drum and there was also a truck with a suitcase of bagged heads of cannabis.

The applicant initially refused to be interviewed by police and when, five months later, she was first interviewed by officers of the Criminal Justice Commission, she gave a false account. However, she changed her mind and gave a full and truthful account, and volunteered important information about the killing at the property as well as the marijuana growing operation and an alleged conspiracy to pervert the course of justice. She agreed to be a crown witness in the resultant prosecutions and, as a result of her co-operation, was placed under the witness protection program in October 1993.

While the sentencing judge took the applicant's co- operation and plea of guilty to an ex officio indictment into account, his Honour considered that the offence was very serious and that the applicant was an active participant who had received a payment of $5,000.00 and had an expectation of receiving further amounts. Her great assistance to authorities and the curtailment upon her freedom from the time she entered the witness protection program were also referred to. His Honour considered that the applicant's involvement was at a much greater level than another offender, McLellan, who was sentenced to eighteen months imprisonment wholly suspended, and more similar to that of another co-offender, Minehan, who was sentenced to four years imprisonment. However, there were a number of distinguishing features, including the applicant's shorter period of involvement and Minehan's criminal history, and a head sentence of 3 years for the applicant was properly relative to Minehan's four years before account is taken of the applicant's personal circumstances.

These circumstances were the matters most relied upon in this Court on behalf of the applicant. Her background is tragic. She did not know until she was fourteen that she had been adopted and, when she found out, believed her parents had lied to her and became rebellious and uncontrollable and ended up a ward of the state. At sixteen, she met her future husband, a former convict aged thirty-three who was on parole at the time they met. Thereafter, her personal circumstances continued to be what was described by her counsel as "appalling". She was self- destructive and involved herself in the drug scene, using marijuana, speed, LSD and heroin. She was married when she was 18, which resulted in a very violent and unhappy relationship. Her husband was a violent drug addict, who assaulted her at least once or twice a week. To support her drug addiction, she worked in a massage parlour before she went to the Gin Gin

property.
At the time of sentence, however, she had indicated a substantial change in her goals and attitudes, was not using drugs, and was attempting to continue her education through to grade 12 level despite having put herself in a great deal of personal danger. It was submitted that, given the background which she was attempting to overcome, her stated goals and her likely continuing and close connection with law enforcement authorities, a custodial sentence placed insufficient emphasis upon the hope of rehabilitating the applicant as compared with the possibility of her being further corrupted by a period in prison and associated exposure to criminals. It was also pointed out that the applicant was "still of an age to enjoy the legislative policy expressed by the Penalties and Sentences Act as to the sentencing of young people and was, quite remarkably, absent previous convictions as at the time of sentencing".

Counsel for the applicant initially submitted that, instead of a custodial sentence, the applicant should be placed on probation for three years and ordered to perform 240 hours community service. In the course of argument, it was accepted that it was not possible to complain of the 3 year head sentence, but it was argued that 9 months actual imprisonment was manifestly excessive. The respondent submitted that the applicant's co-operation with authorities and unfortunate personal circumstances had been sufficiently taken into account by the recommendation for early parole after that period.

The head sentence of imprisonment for three years was fully justified, but the recommendation for early release on parole does not go far enough. The applicant is not only a first offender who pleaded guilty at an early stage and gave the authorities substantial co-operation and assistance, she placed herself in serious on-going danger and, prior to sentencing, suffered a significant period of loss of freedom and privacy while in the witness protection scheme. While she is in prison, she is outside the protection which that scheme provided her. Further, she has to face the trauma connected with giving evidence against former associates, one of whom is said to have threatened to kill her. Finally, there are the features associated with the applicant's upbringing and life experience, and her attempts to rehabilitate herself.

It might have been appropriate for the sentencing judge to suspend the head sentence but, in all the circumstances, the better course now is to release the applicant on parole, where she will be supervised and can be assisted.

The application for leave to appeal and the appeal should be allowed, but only to the extent of recommending that the applicant be considered for release on parole immediately. The head sentence should stand.