R v Willoughby

[1997] QCA 22

COURT OF APPEAL

[1997] QCA 022

FITZGERALD P
DAVIES JA

McPHERSON JA

CA No 484 of 1996
THE QUEEN
v.

DEBRA VICKI WILLOUGHBY Applicant

BRISBANE
..DATE 05/02/97
050297 T13-14/JR/5 M/T COA7/97
McPHERSON J: Debra Willoughby was sentenced after pleading
guilty to two counts of supplying heroin on successive days in
July 1995. On each count she was sentenced in the Supreme Court
to imprisonment for 18 months, suspended after six months, with
an operational period of three years. In the absence of an
order to the contrary those sentences would be served
concurrently. Her application for leave to appeal is based
essentially on the proposition that any prison sentence or
period in prison was, in her case, inappropriate.

The first event leading to the commission of the two offences took place on 5 July 1995 when the applicant herself approached a man who was at a shopping centre in the company of two individuals known to the applicant to be involved in the drug trade. She pretended she knew this man and offered in an aside to supply him with drugs at a better price than his two companions would. As a result, the man made a phone call to her on 8 July 1995. They then met at Inala where he paid her $280 and she, either then or later, delivered two packages containing powder wrapped in alfoil. The powder weighed .272 grams and comprised .159 grams pure heroin, which is equivalent to 58.6 percentage of the total weight of powder.

That transaction was completed on 12 July 1995. The man then communicated with the applicant again on the following day and arranged to buy half a gram of heroin. They met again and she received from the man a sum of $280, promising on her part to deliver the heroin. She was then in the company of a male person who returned later in the day to tell the prospective 050297 T13-14/JR/5 M/T COA7/97

purchaser that police had raided the home of the supplier of drugs to the applicant and had in fact spoken to her. Later, she herself told the purchaser that she had been arrested but that at the time of her arrest had already paid the $280 to her supplier. She did however reassure the prospective purchaser that it was her opinion that the supplier would certainly reimburse her and she would then herself repay the money.

She said she had been dealing with the supplier for some time for whom she claimed to have acted in some capacity as a go-between. She was not arrested until 5 September, at which time she at first denied any knowledge of the transaction. Unknown to her, her purchaser was a police undercover operative; but it is important to notice that it was she who made the approach to him. As the Judge rightly remarked, it is therefore not a case of enticement but a case of her going out in search of business.

As regards the second offence, she later instructed her counsel that she intended "to rip off" the purchaser. Her explanation of what she was doing was that she needed money to pay debts, including rent, and, it seems, in respect of the first transaction specifically to assist her with her own drug addiction.

The applicant was aged 36 at the time of these offences. She has four children, three of whom are still living with her. They are twins aged 10 and a boy aged 13 who are the sons of a man named Northey with whom she lived for some time, until his 050297 T13-14/JR/5 M/T COA7/97

continued ill-treatment of her evidently put an end to the
relationship.

We are invited to consider their welfare in the light of the fact that it will not be easy for her to find a satisfactory means of caring for them while she is in prison, though it must, of course, be added that she would have been aware of that risk herself when she engaged in these transactions.

Apart from that consideration, the principal mitigating factors advanced in her favour are that since August 1995, which was shortly before she was arrested, she has been making efforts to break her own addiction to heroin by submitting to the methadone program. It may, if those efforts were to succeed, be obvious that going to prison is more likely to prejudice than to assist her attempts at rehabilitation.

It is not suggested that the Judge gave no weight to this factor, but rather, perhaps, that although he specifically mentioned it he did not give sufficient weight to it. We are also urged to consider the offences now before us in the context of her past and her past lifestyle.

Unusually, for cases of this kind, she cannot, as I see it, claim to have had a deprived family background or an upbringing which might perhaps have led to her present unhappy state. Hers was not a broken home; she had what is described as a good relationship with her father, but not, it seems, with the mother, who is said to have been strict. At an early age she 050297 T13-14/JR/5 M/T COA7/97

ran away from home and, without going through the detail of her life at that time, it seems that her addiction to drugs may well have started when she went to live with an uncle and aunt in Nimbin and went to school there. According to the record, many of the children in that district were using drugs and she herself began using marijuana. She became pregnant at the age of 16 and had a daughter who is now grown up and living in Canberra. At the age of 21 that relationship came to an end and she took up with the man Northey, who, as I have said, is described as having ill-treated her. She was, at one time it seems, charged with wounding him but the charge was withdrawn. Both of them, that is Northey and she, began to use heroin and her most serious misfortunes seem to date from that time.

She has some previous convictions which involve at least one offence with respect to drugs. It is in her favour however that the last of those convictions was recorded on 7 December 1995. It is also, however, apparent that she has been using heroin for time past.

To my mind, the sentence that was imposed in this case was within the range for offences of supplying of this kind. The Judge specifically stressed the commercial nature of the transaction. He said that the case, as he saw it, presented a straightforward example of commercial supply and, that being so, it was not easy to impose a normal custodial sentence.

He referred to the factors which have been emphasised before us as going in mitigation of the offence; but in the end decided 050297 T13-14/JR/5 M/T COA7/97

that the applicant should serve at least six months out of the
18-month period of the sentence imposed.

I find it difficult to discover in his doing that, or in anything else that the Judge said in the course of the sentencing remarks, any manifest error which would justify us in saying that his discretion was wrongly exercised and that we should set aside the sentence imposed.

For my part, I am not satisfied that the sentence was plainly wrong, or that this is a case in which we should for any reason intervene to alter it. I would therefore refuse the application for leave to appeal.

THE PRESIDENT: I agree.

DAVIES JA: I agree.

THE PRESIDENT: The application is refused.

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