R v Bulmer[2000] QCA 248

COURT OF APPEAL

PINCUS JA

DAVIES JA

THOMAS JA

CA No 27 of 2000

THE QUEEN

v.

YVONNE BULMER Applicant

BRISBANE

..DATE 19/06/2000

JUDGMENT

PINCUS JA:  This is an application for leave to appeal against sentence.  The applicant is a woman born in 1949 and she was convicted after a trial of having dishonestly applied to her own use a sum of $7,000.

The trial concluded in July last year but the applicant was not sentenced till December.  That was so because his Honour ordered that a pre-sentence report be prepared and also desired to allow time for the making of further inquiries about the applicant's medical condition.  She was sentenced to 18 months' imprisonment suspended after three months.  She was released on bail on 11 February this year, after having served three weeks. 

The complainant, who was aged 19 and 20 years at the time of the offence was then unemployed.  The applicant advised her to withdraw money from her bank account to obtain unemployment benefits.  The applicant borrowed $2,000 from the complainant and subsequently offered to invest that money for the complainant in the applicant's name.  That was done and subsequently the exercise was repeated, a sum totalling $7,000 being entrusted to the applicant and not repaid.

It appears to me that the purpose of these arrangements was to enable the complainant to obtain money from the Commonwealth Government to which she was not entitled.  However, that aspect must be disregarded for present purposes, the applicant having been sentenced because she dishonestly applied the $7,000 to her own use.

When the complainant and her mother raised the question of return of the money, the applicant promised to pay it back but she never did so and denied having received it. 

The Judge took a serious view of the matter, saying it involved a breach of trust, which is correct.  In substance, what the applicant did was to steal a substantial amount of money from a young person who made the mistake of taking the applicant at her word.  The pre-sentence report however refers to the applicant's medical difficulties and that has been the main subject of the submissions made by Mr Chowdhury today on her behalf. 

The Judge had before him a number of medical reports and also heard oral evidence from Dr K.J. Carroll.  Dr Carroll had expressed the view that the applicant could be managed in custody and gave reasons for that opinion.  He also said in a report given in January this year that there was no medical reason why the applicant could not serve a short custodial sentence, that is, less than six months.  In answer to questions by the primary Judge, the doctor said that he thought that the emotional component of pain which the applicant suffered would be aggravated by imprisonment.  In cross-examination, Dr Carroll said that he agreed that the applicant would be excluded from work normally done by a prisoner.

The Judge also had before him a report by a Dr Steffen.  That doctor said, and it is common ground, that the applicant has chronic lower back pain from arachnoiditis and has been a patient of the Pain Clinic at the Royal Brisbane Hospital.  The doctor also explained that the applicant had a fall, causing a fracture of the neck of her right femur in October 1999 which took place between the trial and the sentencing process.  Dr Steffen said in December 1999 that the applicant was confined to a wheelchair and would be unable to weight-bear for a period of three to six months.

Dr O'Callaghan, who is from the pain centre which I have mentioned, said he thought the subjective level of the applicant's pain would worsen in prison.  A report by Dr Tony Falconer given in September 1999 before the fracture, based on medical reports supplied to him, contained the opinion that the lady would "pose a significant challenge to correctional health services".

It mentioned a difficulty with medication in gaol and said that the applicant's management within custody would be provided "at a lower level than would be the case in the community".  There is also further medical information which I will mention later.

The Judge preferred Dr Carroll's opinion to that of the other doctors but said that there was not a great deal of difference between them.  Whichever report one refers to  concludes that there are genuine medical difficulties, the only question being the extent to which imprisonment would aggravate the effect of those difficulties upon the applicant.

Medical matters which the Judge mentioned as not being the subject of comment by the witnesses were that the applicant was not getting hydrotherapy; that she urinated by means of a catheter and required assistance and frequent bathing in that connection; and thirdly, that she had an appointment with her specialist on 11 February 2000 in relation to the hip.

I mention the Judge's reference to these points to illustrate that his Honour did, in my opinion, consider the matter carefully and made himself cognisant of all the relevant facts.  Having carefully considered the case, his Honour expressed the view that a period of incarceration was necessary.  He said that otherwise there would be little consequence as a result of the commission of the crime and that would not be in the interests of justice.

Before this Court, but not before the learned primary Judge, we have affidavits of Mr T.F. Harland, the appeals manager of Legal Aid, and a further affidavit of Dr Tony Falconer.  There being no opposition from either side, we have admitted these affidavits.

Mr Harland's affidavit says that, due to ill health, the applicant has not been able to attend his office.  That Harland affidavit annexes an affidavit made by the applicant in relation to her bail application.  In that affidavit, she says that when she was transported to prison after sentencing, she was left on the floor of the prison van and was unconscious on arrival at the hospital.  She was unable to do physiotherapy and was at risk of infection because she could not fully complete her hygiene procedures when urinating.  She said she had been in a wheelchair since arriving at prison but had been provided with crutches.

There is also a letter from the Department dated 27 April 2000 saying that when the applicant arrived at the Correctional Centre from Court, she was found lying on the floor of the van and not responding to staff and that she came to after two or three minutes.  She was taken to Princess Alexandra Hospital and the letter said she had been maintained on the medication she had previously been prescribed.

The affidavit of Dr Falconer which is dated 16 June 2000 reviews her case again and concludes in this way:

"The file reveals that medical staff at Brisbane Womens adopted and continued Ms Bulmer's existing treatment, ...  As endone [which is one of the treatments] is a form of currency in prison environments, she would have taken her medication in the presence of a member of the nursing staff, for her own protection. 

There are no problems documented or reported in relation to Ms Bulmer's medication and provision of it.  The file records that she was provided with endone four times daily.  Ms Bulmer was attended to on 4 occasions by medical staff, including on her arrival on 21 January 2000 and on 24 January 2000 as mentioned above.  On 28 January 2000 she was seen in relation to her need for weekly urine tests and on 8 February 2000 staff recommended Ms Bulmer undertake weight bearing exercises following a knee injury. 

On 4 February 2000, crutches were delivered by a visitor for Ms Bulmer's use." 

There is a paragraph which I will not read out and then Dr Falconer goes on:

"The medical services and treatment generally available to Ms Bulmer if she was to return to custody are the same as those outlined above.  This includes the provision of crutches. 

If Ms Bulmer were given a custodial sentence, I would recommend that she be allocated to a larger cell."

And he goes on to discuss that. 

The circumstances are such that, in my view, one must be inclined to think that the sentence of 18 months' imprisonment was on the high side.  However, having considered the matter and taking into account the fact that there was no sign of remorse nor attempt to repay any of the money and that the applicant did not admit her offence, I cannot think that the sentence of 18 months is at such a level as to warrant reduction by this Court.

A more difficult problem, in my opinion, arises in relation to the three months not suspended.  Mr Chowdhury has cogently argued that the three months' imprisonment should not have been imposed and that the balance between the necessity of imposing punishment and the considerations of humanity would clearly be in favour of the latter, in the present case.  Giving the best consideration I can to the matter, I suspect that some Judges would not have imposed a sentence of imprisonment in these circumstances; but it is impossible to say that the learned primary Judge was wrong in exercising his discretion in the way in which he did.

The matter seems to me to have been one which was finely balanced.  His Honour reached a conclusion which was within the scope of a proper discretion. 

The conclusion to which I have come, then, is that the application should be refused.

DAVIES JA:  I agree.

THOMAS JA:  I agree.

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