R v Stewart[2008] QSC 208

SUPREME COURT OF QUEENSLAND

SUPREME COURT OF QUEENSLAND

CRIMINAL JURISDICTION

FRYBERG J

Indictment No 287 of 2008

THE QUEEN

v.

WENDY HEATHER STEWART

BRISBANE 

DATE 25/08/2008

SENTENCE

HIS HONOUR:  Wendy Stewart, you have been convicted on your own pleas of guilty of nine counts of supplying a dangerous drug, and three of possessing a dangerous drug and property obtained from supplying and possessing a dangerous drug in excess of 2 grams.

Police searched your house in February 2007.  They found a bag containing a clipseal bag of cannabis weighing 53.4 grams.  Within the bag there was a wallet of yours with nearly $2,500 of cash, another clipseal bag of cannabis weighing 1.7 grams and a clipseal bag of white powder weighing 0.328 grams of which 0.025 grams was methylamphetamine.  You said that $1,500 of the money was yours, but that $875 had come from selling marijuana.

There was a purse containing several large clipseal bags with a white paste residue and a clipseal bag wrapped in newspaper which contained 48.5 odd grams of paste containing nearly 3.5 grams of methylamphetamine.  You told police that the bags of cannabis were yours and that you'd sold quarter ounces of cannabis for $100.

You declined to name the persons to whom you had sold cannabis on a number of occasions.  People would come to your house to buy cannabis.  There were two sets of scales and a cabinet at the house that you used for your dealings, one of them being broken.  You said that a friend had given you the methylamphetamine to give you a chance to make some money on it.  You did not provide any information as to the person who supplied you with this material.

Cannabis is a drug which has serious effects on peoples' minds.  For someone who is a schizophrenic or has even a predisposition towards schizophrenia it has the capability of tipping that person from a normal being into being a schizophrenic.  Do you know what schizophrenia is?

DEFENDANT:  Yes, your Honour.

HIS HONOUR:  When you sell cannabis to someone you run the risk of causing them that brain damage, causing them that psychiatric condition.  You should know what it's like to have someone who is brain damaged, who's suffering from cognitive impairment.  When you sell this stuff to other people you are risking doing that same sort of thing to them.

With methylamphetamine it is even worse.  It has known effects on people, it makes them take risks, behave aggressively, they are involved in motor vehicle accidents and violent behaviour.  Consequences also for many people are that they cannot afford what they do and other crime results, such as robberies and burglaries, and when you peddle this stuff there's the flow-on effect to the rest of the community.

Your counsel conceded that your possessions in this case was plainly for commercial purposes, and so were the supplies.  You are indeed fortunate not to have been charged with trafficking. 

You have a criminal history.  It dates back to 1983, but the three entries on it all occurred in the 1980s, the most recent was in 1986.  That's nearly 22 years ago.  One would have hoped that you could've maintained a record free from further offending.  You cannot gain money by these methods.  You cannot put other peoples' lives at risk by these methods, and the community will take steps to stop you if you try it.

There are a number of mitigating factors in your favour.  You made full admissions to the offences and you showed your willingness to co-operate with the administration of justice by notifying your intention to plead guilty at an early stage.  For that you deserve substantial mitigation in your penalty. 

Most importantly, you have the full-time care of your daughter, Samantha.  Samantha is now nearly 18.  She suffered from a brain tumour, a metastatic medulloblastoma, as it is described in the medical report before me, diagnosed in 1999.  She had that tumour excised, she underwent chemotherapy and high dose cranio-spinal irradiation.  She has had a left middle cerebral artery CVA in 2001.  In 2004 she was diagnosed and treated for the floppy brain syndrome, as it is described.  She has been undergoing six monthly reviews since then and has had to have further surgery to fix a shunt in her brain.

She has eyesight and hearing difficulties, she suffers cognitive impairment, she's easily fatigued, she needs full‑time care.  She is on substantial medication.  There is nobody else to care for her, except on a very short term basis.  Your mother is ill, she has cancer, and your sister is not able to undertake the long term care of Samantha.

Samantha is currently in year 12 at a high school.  She has a modified education program.  Changes have to happen next year.  A future has to be found for her.  She continues to have mild intellectual impairment with cognitive functioning several years below her chronological age.  She has difficulties with comprehension and expression of language.  She has difficulties planning, organising, sequencing and problem solving, speed of processing and with her visual spatial skills.

She's impulsive, has difficulties with short term memory as well as recall of information from her memory.  She's easily frustrated and has some emotional ability.  She has low average reading skills and impaired spelling and mathematic skills.  She tires easily.  In short, she needs you and of course she needs the help she is getting currently from the Queensland Paediatric Rehabilitation Service.

You have put yourself in the position where she is at risk of being deprived of that help.  Under our law the fact that some other person will suffer by a sentence of imprisonment imposed on you is ordinarily not a matter which can be taken into account.  In R v D'arrigo, ex parte the Attorney General 2004 QCA 399 the Chief Justice said:  "The balance of authority supports the view that while hardship to third parties because of the imprisonment of a family member may, if rarely, be a relevant consideration, it must not overwhelm others such as the need for deterrence, denunciation and punishment.  Indeed the preponderance of authority is to the effect that this consideration may be brought to account only in exceptional or extreme circumstances."

Similar views were expressed in the New South Wales Court of Criminal Appeal in the case of R v T (1989) 47 Australian Criminal Reports 29, see especially at page 40 where the point was made that any hardship must be so extreme as to go far beyond the norm which results when a breadwinner is imprisoned; so far beyond it that a sense of mercy or of affronted commonsense imperatively demands that the sentencing judge draw back.

In the present case your imprisonment would cause not just economic hardship for Samantha, but hardship in the sense that services which cannot properly be replaced would be withdrawn from her.  Having regard to that and having regard to the other factors of your co-operation with the administration of justice and your admissions, I am satisfied that this is a case that falls within the exceptional circumstances described by the Chief Justice.  I am emboldened to take that course by the Crown's acceptance of that fact. 

You were aged 45 at the time you committed these offences.  You should have known better.  I have considered whether I should impose a suspended sentence, but I accept the view that this is a case where parole supervision would be desirable.  Ordinarily I would impose a suspended sentence on a person of your age; that is 45 at the time, and older now, but the supervisory benefits I think are substantial.

On each of counts 1 to 9 I sentence you to imprisonment for 18 months.  On each of counts 10, 11 and 12 I sentence you to imprisonment for nine months.  Those sentences are designed for general deterrence.  They are all concurrent.  I fix today, the 25th of August 2008 as your parole release date in order to recognise the mitigating factors to which I have referred.

You are therefore required to report to a Probation and Parole office defined under the Corrective Services Act 2006 and obtain a copy of the court ordered parole order between 9am and 5pm either today or tomorrow.  If you do not do so you will be unlawfully at large for the purposes of that Act.