THE QUEEN v BEVERLEY LYNN FRANCIS [2001] NZCA 175 (24 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca88/01

THE QUEEN

V

BEVERLEY LYNN FRANCIS

Hearing:	23 May 2001
Coram:	Tipping J Heron J Paterson J
Appearances:	C P Comeskey for Appellant J M Jelas for Crown
Judgment:	24 May 2001

judgment of the court DELIVERED BY PATERSON J

[1] Ms Francis pleaded guilty to one charge of importing a Class A controlled drug, namely heroin.She was sentenced to 18 months imprisonment and now appeals that sentence on the grounds that it was manifestly excessive.

Background facts

[2] Ms Francis on returning from a trip from Thailand was detained by Customs Officers.She admitted to having heroin concealed in a package within her anal body cavity.There was 0.43 grams of heroin in the package.Her explanation was that, as a chronic drug addict, she used drugs on a daily basis.

[3] Ms Francis travelled to Bangkok with a male associate and purchased one gram of heroin for her own use.She brought back to New Zealand for her own use the portion of the gram not used in Bangkok.

[4] In his sentencing notes, the Judge noted that Ms Francis was relatively young, but not very young, was pregnant and had no previous offences.He accepted a small amount of heroin was involved, she had pleaded guilty at an early date, and the heroin was for her personal use to feed her addiction rather than for profit.The Judge considered the matter a serious offence and was not prepared to suspend the term of 18 months imprisonment, nor was he prepared to grant leave to apply for home detention.

Grounds of appeal

[5] Mr Comeskey, for Ms Francis, submitted that the Judge erred when he determined that the criteria in R v Peterson [1994] 2 NZLR 533 did not apply in this case.Ms Francis was not a drug dealer and insufficient weight had been given to her personal circumstances.These included her guilty plea, her co-operation with the police and the need for rehabilitation.The thrust of the submissions on behalf of Ms Francis was that the sentence imposed was manifestly excessive because the provisions of Peterson applied and the sentence should have been suspended.

[6] Ms Jelas for the Crown, on the other hand, submitted that a non-custodial sentence was inappropriate given the nature of the offending, the need to deter others and Ms Francis' breach of her bail conditions. The breach of the bail condition was Ms Francis' discharging herself from the drug assessment programme at Odyssey House.In fact, prior to sentencing, Ms Francis failed in two attempts to complete a rehabilitative programme, one at Odyssey House and the other at Higher Ground.Further, as counsel submitted there was not before the Court any alternative rehabilitative proposal.

[7] In this Court, Mr Comeskey suggested that the appropriate course was to reduce the term of imprisonment, suspend it under s 21A of the Criminal Justice Act 1985, and add a period of supervision.The conditions relating to supervision would require Ms Francis to complete such rehabilitative programmes as directed by her Probation Officer.Although the original proposal had been for Ms Francis, if not imprisoned, to live at Whangamata with her partner, Mr Comeskey advised the Court that Ms Francis would be able to live with her parents in the Auckland area.

Conclusions

[8] We agree that Ms Francis' circumstances comply with most of the criteria referred to in Petersen.There is a relevant exception, namely, Ms Francis' likely response to this sentence.Clearly, she is need of rehabilitation.The Probation Officer in the pre-sentence report, noted that Ms Francis

"is motivated to address this criminogenic need because she is pregnant, she tended to minimise the difficulties she is facing in terms of ceasing her drug use.This is also evidenced in her having had the opportunity of being on two different residential treatment programmes and choosing to leave both of them."

The Officer concluded that because she had broken conditions of her bail on two occasions, a community based sentence was both impractical and unrealistic. There is force in the Crown's submission that although Ms Francis is badly in need of rehabilitation, her previous attempts to rehabilitate, which will probably preclude her from returning either to Odyssey House or Higher Ground, do not engender confidence in her responding positively to her rehabilitative needs if the sentence were to be suspended.It is also relevant in this respect that Ms Francis' partner and father of her expected child is an offender well known to the Probation service.

[9] In these circumstances we are of the view that the sentencing Judge did not err when he declined to suspend the sentence.An important step in the rehabilitation process, namely, Ms Francis' response to the sentence and the rehabilitative conditions, had not been met.In the circumstances it is likely that she will be better assisted by the programmes which she is likely to get in prison than by terms imposed as part of a suspended sentence.The conditions which Mr Comeskey seeks on her behalf can, if the prison board considers it appropriate, be imposed at the time of her parole.

[10] Although the quantity of heroin was small, it was not much below the presumptive drug dealing quantity of 0.5 grams.The drug imported, albeit for Ms Francis' own use, was a Class A controlled drug.Deterrence principles apply.In these circumstances we do not consider that a sentence of 18 months imprisonment was manifestly excessive.

Result

[11] The appeal against sentence is accordingly dismissed.

Solicitors

Davies Law, New Lynn, Auckland for Appellant

Crown Law Office, Wellington