R. v. Woods

[1994] QCA 526

IN THE COURT OF APPEAL [1994] QCA 526

SUPREME COURT OF QUEENSLAND	C.A. No. 381 of 1994
Brisbane
BeforeFitzgerald P. Pincus J.A. Dowsett J.
[R.v. Woods]

T H E Q U E E N

v.

PETER JOHN WOODS (Applicant)

REASONS FOR JUDGMENT - FITZGERALD P. AND DOWSETT J.

Judgment delivered 02/12/1994

This is an application for leave to appeal against sentences

imposed in the Trial Division at Brisbane on 31 August 1994.

The applicant pleaded guilty and was convicted of ten offences

of supply of a dangerous drug, heroin, one offence of possession of a thing used in the unlawful supply of a dangerous drug, a Telecom pager, and one offence of trafficking in a dangerous

drug, heroin. The trafficking was constituted by the ten

occasions of supply. He was sentenced to imprisonment for eight years in respect of the trafficking count and four years in

respect of each of the other counts, to be served concurrently, with a recommendation was that he be considered for parole after serving three years and six months.

All of the offences occurred between 17 June and 15 July 1993.

A drug user introduced an undercover policeman to the applicant, who thereafter supplied the undercover police officer on the ten occasions which gave rise to the offences. In all, about 5.7g of heroin of an average purity of 72.6% was supplied for a total amount of $9,865.00. On some occasions, the applicant sought out the undercover police officer for the purpose of effecting a sale, and the applicant was sentenced on the basis that he was seeking to expand his enterprise, and that he was, in part, motivated by a desire for profit.

However, these matters must be placed in context, and it is

convenient to do so primarily by reference to two reports provided by a psychiatrist, Dr Gregory Apel, dated respectively

19 August 1993 and 28 August 1994. What Dr Apel said in those

reports must be seen in conjunction with the applicant's age, he is 37, and criminal history. Apart from five comparatively

minor drug offences in New South Wales between 1978 and 1983, he committed no offences until the very end of 1991. Thereafter he had seven convictions, again for relatively minor offences, one

of dishonesty and six related to drugs. On no occasion, until now, was he sentenced to prison or given a community based order.

When Dr Apel first saw the applicant he had committed the

offences to which the present sentences relate and had been referred to Dr Apel "because of complications in management of his drug dependency". In his initial report, dated 19 August

1993, Dr Apel said:
"...
His drug dependence problems have been present for the last

8 years starting at the age of 28 but with a drug-free period of 4 years from 1988 to 1992 following a prolonged inpatient stay in Woden Valley Hospital in Canberra. During this period he had re-organised much of his life and appeared to be well on the pathway to recovery. In this time he married his wife Michelle now aged 29, had two children Daniel and Emma. He was employed in a very high paying job as a leading salesman for The Roofing Centre supporting his wife and children on a large block of land in Lowood, west of Ipswich.

Mr Woods current heroin habit began in April 1992 following a significant head injury after an air-conditioner fell on his head at work. He developed severe headaches which persisted regardless of the mode of treatment of analgesic offered medically. Heroin use worsened in 1992 with forensic difficulty arising from the discovery of some marijuana plants on his property. Mr Woods maintains that these were not his but in fact belonged to an acquaintance of his who had put them there. He states he ended up pleading guilty to the crime of cultivation because his wife would have been charged as well. The legal case issuing from this was a long, arduous one resulting in very high expenditure and proved to be an extremely stressful time for him. His drug intake rapidly returned to its previous level of overt physical and psychological dependence. He separated from his wife early this year because she could no longer tolerate his behaviour and without her support and structure, his life deteriorated further still to the chaos of drug use exploitative friendships, financially stressful situations and poor quality unsafe housing.

He had been on the methadone programme since October of last year in Dr Chew's care but even large doses of the methadone were unable to contain his erratic behaviour.

Matters worsened still further by the accidental death by drowning of his eldest child Daniel on the 12th January this year. This was while he was in the care of his wife Michelle at the Gold Coast. He's maintained close contact with his children even after separation from his wife and the grief from this further reduced his capacity to bring his life under some sort of control.

On my first interview with him in 21st May of this year he poignantly related living in an atmosphere of 'madness and inhumanity' in West End, of lying, stealing and heroin use. ... He related heroin use in a heavy and chaotic pattern as well as use of benzodiazepines such as Valium and Serepax as well to numb his brain. His depressive state has deteriorated to such a degree that he was admitted to Princess Alexandra Hospital in March of this year for a period of two weeks for management of his depression. He has been tried on a variety of anti-depressants and was eventually placed on Prothiaden 150mg per day which was proving of some benefit. Whilst on this medication his drug intake had stabilised and he was able to be more compliant with the methadone programme.

...

MENTAL STATE EXAMINATION

Mr Woods appeared neatly but casually dressed with a markedly depressed affect and mood. Whilst not suicidal his thoughts were dominated by a pervasive sadness and unreactivity. He was insightful as to the nature of his difficulties and the origins of his depression both in terms of being in the grip of a drug dependency and in a state of grief over the death of his son and the demise of his marriage. He is not psychotic or suicidal and his intelligence was above average. His general approach to matters was more consistent with a man much younger than stated years and this fitted in with the attitude of extreme immaturity which is present throughout his personal history. His judgement was significantly impaired in terms of his capacity to seek and accept appropriate help for his depression and his drug dependency.

CLINICAL PROGRESS

I saw Mr Woods for a second interview on the 26th May this year at which point he had significantly improved with on going medication with the anti-depressant Prothiaden. He was able to discuss a little more freely and realistically about the issues surrounding the reasons for the difficulties within his marriage and his emotional responses to the death of his son. Most importantly he was able to discuss how he had used heroin to cope with the grief of this.

Mr Woods made one further appointment but failed to turn up in June of this year. I had not heard from him since until this request for a report.

SUMMARY

Mr Peter Woods is a 36 year old married man and father of two children, only on of whom is still living. He is currently separated from his wife of 5 years.

Mr Woods suffers from two major problems:

1.Drug dependency principally on heroin but to a lesser extent on benzodaizepines as well. This is of a great magnitude such that drug seeking behaviour dominates much of his life and thoughts, and at the time of the offence he oscillated between intoxication and withdrawal states.

2.Mr Woods suffers from major depression, as a complicated grief response to the death of his son and the breakup of his marriage. This has been partially treated with anti-depressants but requires much more psychological support and work with him before any resolution could be in sight.

3.Whilst his drug dependence could in no way be attributed to his head injury in April 1992 or the marriage breakup and death of his son, these factors have made it difficult for him to gain control of his drug use and have greatly exacerbated the problem.

4.Mr Woods is a man of above average intelligence and significant talents and capacity to work and when drug free has been a good husband and caring father to his family. As such he did not suffer from anti-social personality disorder. This is a significant prognostic point for re- offending.

5.I would ask the court to consider alternatives to a custodial sentence for this man. Given his lack of background in criminal activity other than the marijuana offence of 1992, and the context of the current offences occurring while he was either intoxicated with drugs or in the grip of withdrawal, seeking to fuel his habit. I suggest that the treatment of his drug dependence is the primary issue rather than response to his anti-social acts in feeding that dependence. Given that he has done so well when he is drug free I would be happy to assist supervision of Mr Woods in a rehabilitation programme to ensure he remains drug free. If he can be maintained in a drug free state I would assess the possibility of re-offending as extremely low.

Subsequently, the applicant returned to Dr Apel for further

treatment, and also entered Logan House to deal with his drug

dependency. In his report of 28 August 1994, Dr Apel said:
"...
3.Progress since August 1993:

As part of the court conditions, Mr. Woods attended the Logan House therapeutic community remaining beyond the usual nine months until July of this year. I am familiar with the programme there, which demands full separation from the outside world in the initial stages, and a rigorous confrontative approach to the rationalizations that are the concommitants of drug use. This is a tough and unforgiving programme and the dropout rate is high. Clients who do not participate wholeheartedly are conspicuous and thrown out so as not to interfere with the progress of others.

Mr. Woods attached well to Logan House and matured considerably in this setting. He was able to prolong his time there by delaying the prerequisite independant steps for discharge, indicating his dependance on the framework there.

After five months in the programme he was permitted to return to sessions with me as an adjunct. He was by this time well aware of the issues that underlay his drug use ie. avoidance of full responsibility for his situation and, specifically, a disabling tendency to procrastination. In sessions working on these points, and being in a far calmer and more reflective state, he applied effort and was able to utilize my input and corrective suggestions.

He was but one week pre-discharge when asked to leave because of the development of a sexual relationship with another client (expressly forbidden by the rules).

Mr. Woods related being shattered by this and at the time using his depressed state to justify drug use. He used heroin twice in the two days after discharge, then realized his error and began to organize himself, finding a flat and looking for work.

He was arrested for breach of bail conditions (that he stay in Logan House). He has not used heroin in jail, despite funds and ready availability.

4.(a)I stand by my conclusions of the report of 8/93, in particular that the chances of relapse into antisocial behaviour are low.

(b)The occurrence of minor relapses of drug use is highly expectable, and part of the natural history of the problem. Total cessation of drug use after prolonged dependancy is uncommon and indeed a bit difficult to believe at times. A more usual pattern of recovery is for a number of slippages, becoming progressively briefer and less intense, and ended by the patient rather than external intervention.

As such, Mr. Woods belief relapse is not surprising, and should not detract from his attainment of 12 months abstinence.

(c)Mr. Woods remains remorseful for his behaviour and is anxious to work toward restoring his damaged relationship with his child and ex- wife. He is well aware of the extent of the dependency needs within his own character and hence the need to a structured life and ongoing psychiatric care.

(d)Hence I would ask the court to view Mr. Woods case with clemency, as his error of judgment have been few compared to his efforts within the Logan House programme and the attainment of 12 months abstinence."

The sentencing judge's remarks give little insight into why, in these circumstances, he sentenced the applicant as he did.

Reference was made to the applicant's prior convictions for drug

offences, but they are of little importance in the circumstances, and the commercial motivation, of which mention was made, seems to involve no more than a conclusion that the applicant acted as he did, not only to obtain heroin for himself but also to obtain money for living expenses; there is certainly

no suggestion of large-scale involvement.

Our attention was drawn to a number of other decisions, although

none were particularly relevant. Counsel seem to agree that most assistance might be gained from Swan (C.A. No. 354 of 1993, judgment delivered 11 November 1993), and Sebez (C.A. No. 100 of

1994, judgment delivered 17 May 1994). Some points of similarity can be found; for example, both were addicts, and in both cases the quantities of drug and/or amounts of money involved were not dissimilar from the present case. However,

there are also dissimilarities, which it is unnecessary to detail. The sentences imposed on Swan and Sebez, in Swan's case

seven years' imprisonment with a recommendation for parole after three years, and in Sebez' case imprisonment for nine years with

a recommendation for parole after three years, seem dependent upon specific findings in those matters. The sentencing judge described Swan "as a major trafficker in the Toowoomba area", and, in Sebez, this Court proceeded on the basis that, although he was a user of heroin, so that "the operation was not purely a

commercial one", the "amounts of money involved were significant"; the sentencing judge had found that Sebez "made $300-$400 a week" from his criminal activities.

While the applicant's conduct cannot be condoned and drug

addicts cannot expect to traffic in drugs and not be severely punished, the sentences imposed on the applicant seem to us

manifestly excessive, and likely to be counter-productive. Matters which seem to us of particular significance are the

obvious correlation between the applicant's offences and his drug dependency, his cooperation and willingness to assist

himself, and his prospects of rehabilitation.

We would allow the application and the appeal, set aside the

sentences imposed below, and substitute a sentence of imprisonment for four years on the trafficking count, and two

and a half years on each of the other counts, all to be served concurrently. The applicant should be considered for release on parole after one year. A declaration should be made that the

time spent by the applicant in pre-sentence custody between 15
July and 6 September 1993 is time served.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	C.A. No. 381 of 1994
Brisbane
[R. v. Woods]

T H E Q U E E N

v.

PETER JOHN WOODS (Applicant)

FITZGERALD P.

PINCUS J.A. DOWSETT J.

Judgment delivered 02/12/1994

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND DOWSETT J.,

PINCUS J.A. SEPARATELY. ALL CONCURRING AS TO THE ORDERS MADE.

ORDER THAT:
1.APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
2.APPEAL ALLOWED.
3.SET ASIDE SENTENCE IMPOSED BELOW AND IN LIEU THEREOF

SUBSTITUTE A SENTENCE OF IMPRISONMENT FOR FOUR YEARS ON THE TRAFFICKING COUNT AND TWO AND A HALF YEARS ON EACH OF THE OTHER COUNTS, ALL TO BE SERVED CONCURRENTLY, WITH A RECOMMENDATION FOR PAROLE AFTER ONE YEAR.

4.DECLARE THAT THE TIME SPENT IN PRE-SENTENCE CUSTODY BETWEEN 15

JULY AND 6 SEPTEMBER 1993 IS TIME ALREADY SERVED.

5.THAT TIME IS 54 DAYS.

CATCHWORDS:CRIMINAL LAW - SENTENCE - heroin trafficking - 8 years' imprisonment - applicant addict supplied undercover agent with heroin on several occasions - possessed pager - considered that applicant planned to extend his operation - applicant had previously made considerable efforts to rehabilitation - correlation between applicant's offences and drug dependency - whether sentences manifestly excessive

Counsel:Ms D. Richards for the Applicant
P. Ridgeway for the Respondent
Solicitors:Legal Aid Office for the Applicant
Director of Prosecutions for the Respondent

Date/s of Hearing:23 November 1994

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 02/12/1994

I have read the joint reasons for judgment of the President and Dowsett J., and agree with their Honours' conclusion.

It emerges from Dr Apel's useful reports that the applicant has tried very hard to overcome his drug addiction and that there is some prospect of his doing so. The impression created by the material is that this addiction is the applicant's central problem and the main cause of the commission of the offences in question. It does not, with respect, seem likely, if any weight at all is to be given to Dr Apel's reports, that a long prison sentence will really assist in the applicant's struggle to rehabilitate himself.

The court's task in sentencing goes well beyond consideration of the interests of the offender, and, with respect to the selling of heroin, deterrence is of great importance. The practice of the courts is to distinguish substantially between the addict offender whose participation in drug transactions is minor and a product of his addition, and people who are just in the business of distributing drugs. In some instances it is unclear into which category the offender falls, and some fall between the two. The learned primary judge was not convinced that the applicant's activities were free of a merely profit-making motive. It is important to deter addicts as well as those who are not addicted from participation in the drug trade, but the community's interests will be served by endeavouring to strike a balance between deterrence on the one hand and the objective of encouraging rehabilitative efforts on the part of the addict offender on the other. In the present case, particularly having in mind that the applicant's problems have been partly due to the accidental death of his son and to a head injury which he sustained in 1992, the latter objective should be given considerable weight.

One must recognise that this involves a risk; it may turn out that the lenient course adopted will, in retrospect, appear to have been futile. But here the better course is to accept whatever risk or disadvantage is involved in reducing the head sentence substantially and offering the prospect of an early release on parole, rather than leaving the applicant with a heavy sentence which may suppress his apparent impulse towards self-redemption; he has never been imprisoned before.

In the course of argument it was suggested that, although it is not easy to reconcile the appellate decisions relating to cases of this kind, there are such decisions which tend to support the orders made by the learned primary judge. I agree with that view, but think that the personal circumstances of the applicant indicate the desirability of a substantially less severe sentence than was imposed below.

For these reasons I agree with the orders proposed.