The Queen v Dean[1999] QCA 378

COURT OF APPEAL

DAVIES JA

AMBROSE J

CULLINANE J

CA No 237 of 1999

THE QUEEN

v.

DEBRA JOY DEANApplicant

BRISBANE

DATE 08/09/99

JUDGMENT

AMBROSE J: The applicant for leave to appeal against sentence is a 34-year-old woman who, in October 1998, had possession of something over 200 grams of methylamphetamine. She was sentenced on 6 July 1999 to a term of five years' imprisonment with a recommendation for release upon parole after serving 18 months. The offence was a serious one because she was carrying about 100 times the amount specified in the third schedule.

The evidence disclosed that she was travelling from Brisbane to Western Australia and was at the Brisbane Airport for that purpose when she got sick and was discovered in a very serious condition in a toilet. She was taken to hospital and it was there discovered that a number of condoms which had been inserted internally had apparently leaked and methylamphetamine had been discharged into her vaginal area. 

She gave a statement to the effect that she had met a man in Perth on one of a number of trips that she had made there and, after a discussion with him concerning her financial embarrassment, he had asked her whether she would be prepared to bring something from Brisbane back to Perth for a fee of $3,000. She agreed to do this. It is unnecessary to go into the details of the arrangement further. 

She suspected that she would be bringing back something illegal, she was a bit concerned about it but was persuaded by the promise of payment of $3,000 to go ahead with it. Eventually, after a discussion with this man over the telephone on the morning that she was to leave to travel to Perth, she took possession of methylamphetamine and she put some of it into condoms and inserted them into her vagina. Another package was secreted in her luggage. The evidence disclosed that, all told, she had in her possession 205 grams approximately of methylamphetamine. She pleaded guilty to the offence and the sentencing Judge, as I have indicated, imposed a penalty of five years' imprisonment with a recommendation that she be eligible for parole after serving 18 months. 

She seeks leave to appeal not on the basis that the sentence was outside the range, which was agreed I think, in effect, to be somewhere within four years' imprisonment and six years' imprisonment, but on the basis that the sentencing Judge made errors discernible from his sentencing remarks in that he failed to make any, or at least any sufficient allowance for a serious physical condition that resulted to the applicant in the area of her vagina when this drug was released internally. It was also asserted that he wrongly assumed, from his sentencing remarks, that she must have been involved previously in this sort of couriering operation. 

I must say, for my part, looking at His Honour's sentencing remarks, I am unpersuaded that His Honour did forget about or ignore or not give weight to the significant physical injury that the applicant suffered as the result of the condom's discharging the methylamphetamine internally. There was a good deal of medical evidence placed before him from doctors and hospital reports, psychiatric reports and so on dealing with these matters and, on my reading of His Honour's sentencing remarks, he had them in mind when he imposed the sentence, although he did not go into that matter in any detail.

Stated shortly, and it is unnecessary to do more than that, she could easily have died as a result of the leaking of the methylamphetamine internally, had she not received urgent attention. As a consequence of the damage done to her internally, she will require vaginal dilation from time to time. She will suffer, and has suffered from a discharge of blood;  however, there are reconstructive surgical operations which, if successful, would repair the damage that was done to her.

His Honour also indicated that he was not disposed to accept matters advanced on behalf of the applicant to reduce the seriousness of the offence to which she pleaded guilty. He said, for example, "You are not, in my view, the innocent that is advanced in the picture of you on your behalf," and he observed that matters that had been presented on her behalf were both overdone and not always accurate. He also observed that the offence that she had committed was not that of a person who was naive and simply being used by other people.

In my view, His Honour, in making those observations, made it clear that he would not increase the sentence or, as he said, "add to your punishment" in respect of the matters that he had referred to. He said that it was a serious crime and undoubtedly it was. The maximum penalty for this offence is imprisonment for 20 years, which is the same as the maximum penalty for trafficking, and this was a very large amount of methylamphetamine that she was transporting, for commercial purposes obviously.

In my view, I am unpersuaded that His Honour in fact did not make allowance in imposing the sentence which he did for the significant physical damage that was done to the applicant when the condom containing the methylamphetamine leaked inside her. It was conceded that the maximum sentence would have been one of six years. In my view, for carrying 100 times the amount specified in the third schedule, had it not been for the injury suffered by the applicant, His Honour could well have been justified in imposing a sentence of six years. What he did impose was something less than the sentence at the higher end of the range and I am simply unpersuaded that it has been demonstrated that His Honour overlooked the injury suffered by the applicant in the course of her criminal activity.

His Honour was referred to a decision of this Court in The Queen against Noble and Verheyden, which is reported in (1996) Queensland Reports at 329. That was a case where the real issue was one of disparity in sentence but this Court there referred to an article by a Mr Rinaldi in (1984) Criminal Law Journal at 244 and 246. That article really was somewhat critical of a decision of the Court of Criminal Appeal in Victoria in a matter of Fletcher. Fletcher was also a case where the real issue was one of disparity in sentencing persons, one of whom suffered an injury in the course of the offence committed whereas the other one did not.

The most recent consideration of this matter that I have located is another case in the Court of Criminal Appeal in Victoria in Barci against Asling (1994) 76 Australian Criminal Reports at 103 and particularly at page 111. It was a unanimous decision of that Court. It also was a case involving an appeal based upon disparity of sentence where one person was seriously injured and the other was not so seriously injured in the commission of the offence. There is an interesting statement of principle appearing at page 111 of the report where in the judgment it was observed:

"It is, we think, and as the Crown concedes, not a complete answer to say that Barci brought his injuries upon himself.  The fact is that these very serious injuries directly resulted from the commission of the crime itself. For the rest of his life, those injuries will serve as a savage reminder to Barci of his criminality and, as such, they must fairly be regarded as constituting some punishment for that criminality."

That is consistent, in my view, with what this Court said in Noble and Verheyden. However, in my view, it has not been demonstrated that His Honour did not make due allowance for the injury suffered by the applicant. I am unpersuaded, on the material, that His Honour made any error in law or overlooked any relevant matter advanced before him upon the sentencing exercise and it is not, in my view, open to this Court to embark upon a re-sentencing of the applicant on the basis that perhaps a slightly more generous recommendation might have been made with respect to eligibility for parole. I would dismiss the application.

DAVIES JA: I agree. Mr Glynn did not suggest that the sentence was outside the appropriate range. He relied on the two errors referred to by Mr Justice Ambrose as requiring us to set aside the sentence and to re-sentence. As to the first of these, it is claimed from the transcript of argument that His Honour expressed the view that the injury could be taken into account. 

Shortly after His Honour had said that, and only shortly before His Honour delivered his sentencing remarks, Mr Kimmins for the applicant urged His Honour to take into account personal factors which seem, in context, to be intended to include the injury which the applicant suffered. His Honour then, in the first sentence of his judgment, said that he would make allowance in the applicant's favour for the personal matters so far as he felt they were justified. His Honour did not in terms refer to the injury but I think His Honour was referring to that when he referred to the personal matters. It is certainly not at all clear, in any event, that His Honour had not done so and it seems fair to conclude that His Honour took that into account.

As to the second of these, His Honour did express some scepticism as to the extent of what was said on the applicant's behalf indicating that he thought that there was some exaggeration in submissions made on her behalf. But he then said that he would not add to her punishment because of that. In other words, he, being faced with uncontradicted submissions, was bound to and did accept those submissions. For those reasons I would agree with Mr Justice Ambrose that there was no error in either of the respects contended for by Mr Glynn and I would refuse the application also.

CULLINANE J: I agree with what both of the other members of the Court have said. I think the application should be refused also.

DAVIES JA: The application is refused.