R v Cole[1998] QCA 205

COURT OF APPEAL

McPHERSON JA

DEMACK J

HELMAN J

CA No 140 of 1998

THE QUEEN

v.

DONNA MAREE COLE (Applicant)

BRISBANE

DATE 26/06/98

JUDGMENT

DEMACK J:  This is an application for leave to appeal against sentences imposed in the Supreme Court on 7 April 1998. On that day the applicant was charged with the supply of cannabis sativa to an inmate in a correctional institution and she pleaded guilty to that offence.

The circumstances that were placed before the Sentencing Judge were that she visited the David Longlands Correctional Centre intending to see her brother, Malcolm Cole. She was searched by two female officers and found to have a small amount of green leaf material wrapped in plastic in the left cup of her bra. This was analysed and shown to be cannabis sativa. It weighed 1.3 grams.

The offence is a significant one because the Courts have an obligation to ensure that drugs are not taken into prison. Here the explanation given was that she was trying to take her brother what was a late Christmas present, the offence having occurred on 2 January 1998.

However, Ms Cole's criminal history has meant that a sentence of imprisonment was imposed in respect of the charge of supply of the cannabis sativa and also consideration was given to activating a suspended sentence that was imposed in the District Court on 3 December 1996.

She was then sentenced to 18 months' imprisonment. That sentence was suspended after serving three months and an operational period of three years was imposed. The sentencing Judge in this Court imposed a sentence of three months' imprisonment for the possession of marijuana and activated the remaining 15 months of the suspended sentence. The applicant has appealed against that sentence on the basis that it was manifestly excessive.

The Court received a written submission signed by Miss Cole on 23 June this year. When she appeared this morning, representing herself, Miss Cole asked to have the matter adjourned because she wished to do some research into comparable sentences to see if her sentence might be reduced.

The situation which makes it difficult for the applicant to argue that the sentences were manifestly excessive arises from her criminal history. On 15 September 1995, she was convicted of 20 charges of false pretences between 16 December 1991 and 11 August 1995, a charge of stealing and also two breaches of the Bail Act. She was placed on probation for 18 months and restitution in the amount of $952 was ordered. She subsequently appeared before the Magistrates Court in Toowoomba on a charge of indecent language and was placed on a recognisance of $100 to be of good behaviour for two months.

On 3 May 1996 in the Toowoomba Magistrates Court she was dealt with for a breach of the probation order imposed in the previous September. It appears that the breach arose because of non-compliance with the orders rather than because of any further offences. The probation order was discharged on 3 May 1996 and she was re-sentenced for the original offence. She was convicted and fined $750 and a new order for payment of the restitution was made.

On 3 December 1996 she appeared before the District Court in Toowoomba on three charges of breaking and entering a dwelling house with intent in the night-time, one charge of assault occasioning bodily harm whilst in company and one charge of stealing. The offences all occurred on the night of 4 August 1996.

The material placed before the District Court Judge was to the effect that applicant here, with her brother Danny Cole and another male, broke and entered three houses looking for someone that they wanted to assault. They, in fact, assaulted two young women in two of the houses that they broke into. They also stole over $1,000 worth of property. The sentencing Judge described Miss Cole as the brains of the three and apparently it was she who particularly was seeking revenge on some other person. The sentence that was imposed was imprisonment for 18 months, all terms to be served concurrently and suspended after serving three months with an operational period of three years. Miss Cole was born on 9 April 1975 and so at this stage is 23 years of age.

The matter having come before a Judge of this Court on a plea of guilty in respect of the supply of a dangerous drug the question of the breach of the suspended sentence was dealt with. No opposition was placed to His Honour dealing with the matter. He considered the various obligations cast on a Court dealing with a re-activation of a suspended sentence under section 147 of the Penalties and Sentences Act. He took the view that the offence that had brought her back to Court was a serious one. He said it involved the subversion of discipline which must be maintained in prison. He took the view that the applicant knew that she was doing wrong.

So far as mitigation of sentence was concerned he took into account her youth and her early indication to plead guilty but expressed the view that the offence of supply of marijuana contained an element of calculated disdain for the law. In the circumstances he imposed a sentence of three months' imprisonment making that sentence concurrent with the re-activated suspended sentence. He referred to the criminal history and said it was unattractive and I have set that out.

Miss Cole raised the question of whether by research she might find evidence of other sentences which were less onerous than those imposed on her. It would seem to me that the sentence imposed initially in the District Court was a moderate one in view of the seriousness of the offences. She served three months of that 18 months and having previously been offered probation and then offered the advantage of a suspended sentence knew well the consequences of any further breach of the law. This means that when the offence of supply of a small quantity of marijuana to someone in the prison occurred she was in a very different position from the situation that occasionally comes before the Courts where women take drugs to prison because they have been importuned by a male inmate.

Here, this is no suggestion that this was anything other than a voluntary supply undertaken no doubt because of family affection. Nonetheless, it was a serious criminal offence and in those circumstances the sentence of three months would be a very proper one to impose. In those circumstances also nothing could be suggested that it was unjust to require the balance of the suspended sentence to be served. The latter offence was committed in full knowledge that there was a further 15 months of the suspended sentence unserved and it was proper in those circumstances for the sentencing Judge to re-activate that sentence.

Consequently, in my view, there was nothing to be gained by an attempted search of records and no basis for granting an adjournment. In my opinion the application should be refused.

McPHERSON JA:  I agree. The application should be refused.

HELMAN J:  I agree.

McPHERSON JA:  The order is that the application for leave to appeal is dismissed.

JONATHAN WILLIAM RUSSELL:  Excuse me, Your Honour. My name is Jonathan William Russell and I am wondering if - if Miss Cole here - if her particular situation is connected to the Deb Guise situation. It - in the-----

McPHERSON JA:  To the who - to whose-----

JONATHAN WILLIAM RUSSELL:  -----in the area recently here in the news recently. Can you tell me if that is true?

DEMACK J:  There is no connection of which the Court is aware.

JONATHAN WILLIAM RUSSELL:  No. Yes, thank you, Your Honour.