Regina v Bowman [1999] NSWCCA 55

New South Wales Court of Criminal Appeal CITATION : Regina v Bowman [1999] NSWCCA 55 revised - 25/03/99 FILE NUMBER(S) : CCA 60207/97 HEARING DATE(S) : 12.3.99; 17.3.99 JUDGMENT DATE : 17 March 1999

PARTIES : REGINA v Heather Theresa BOWMAN JUDGMENT OF : Simpson J; Smart AJ

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Job DCJ

COUNSEL : Appellant in person R D Ellis for the Crown SOLICITORS : S E O'Connor for the Crown CATCHWORDS : Appeal against severity of sentence - Supply prohibited drug - goods in custody - ACTS CITED : s.25(1) Drug Misuse & Trafficking Act 1985 DECISION : Leave to appeal against sentences granted.; Appeal against sentences allowed. In lieu of sentences imposed applicant be sentenced on each count to 12 months imprisonment to be served by way of periodic detention. Sentences are to be served concurrently. Applicant to report to Officer-in-Charge of Tomago Periodic Detention Centre on or before 7.00pm 26 March 1999.

IN THE COURT OF CRIMINAL APPEAL 60207/97 SIMPSON J SMART AJ Wednesday, 17 March, 1999 REGINA v Heather Theresa BOWMAN JUDGMENT 1 SIMPSON J: I agree with the orders proposed and the reasons. The orders of the court will be those proposed by Smart AJ. . 2 SMART AJ: Heather Theresa Bowman seeks leave to appeal against the severity of four concurrent sentences, each comprising a minimum term of twelve months and an additional term of four months in respect of two counts of knowingly take part in the supply of methylamphetamine being on 30 January 1996 and 27 February 1996, one count of supplying cannabis leaf between 3 and 5 March 1996 and one count of supplying methylamphetamine during the same period. 3 Four matters were taken into account, namely, possession of 10.8 grams of amphetamine, possession of 29.4 grams of cannabis, possession of a black bong used for smoking cannabis in her home and goods in custody ($600 in cash, reasonably being suspected of being the proceeds of drug sales). These substances and items were found in her home. 4 On 30 January 1996 the applicant travelled with her husband, David Bowman, to Killarney Vale in her vehicle. There he met with Raymond Watt. Both had been in prison together. Watt supplied Mr Bowman with 1.5 ounces of amphetamine. Mr and Mrs Bowman travelled to Ourimbah where the drug was sold to an undercover police officer. They returned to Killarney Vale where Mr Bowman handed the proceeds of sale to Watt who paid Mr Bowman $100 for selling the drug. 5 On 27 February 1996 Mr and Mrs Bowman drove to Killarney Vale where Watt supplied four ounces of amphetamine. They travelled to Ourimbah. The drug was sold to the same undercover police officer for $4,600. The husband counted the money and they returned to Killarney Vale. Mr Bowman handed the money to Watt and Watt paid Mr Bowman $100 for selling the drug. 6 Mrs Bowman's involvement in these two offences was minimal. Her husband conducted the dealings with the undercover police officer and with Watt and handled the money. 7 On 3 March 1996 Mr Bowman was supplied by Watt with twenty eight small resealable plastic bags each containing one gram of amphetamine. These drugs were taken to the Bowman home and sold for $100 per bag. Mr Bowman sold most of the bags and Mrs Bowman sold about two of them. 8 On 3 March 1996 Mr Bowman was also supplied by Watt with sixty three bags of cannabis each containing about 1.5 grams. They were sold from the Bowman home and by the husband at the Newcastle Show. She sold four bags from the home for $25 each on 5 March 1996. 9 Mr Bowman was sentenced to minimum terms totalling two years and an additional term of eight months. Mrs Bowman does have a previous record. It comprises an offence in 1991 of cultivating prohibited drugs for which she was fined and four dishonesty offences in 1993 for which she was placed on a bond to be of good behaviour for three years. She was given 150 hours community services. 10 A little later in 1993 she was convicted of stealing and fined. She was thus on a recognizance at the time of the offences the subject of this application. Her husband's record was much worse than her record. When questioned by police Mrs Bowman admitted her involvement and she pleaded guilty. These factors must be taken into consideration in her favour. 11 Watt and Bowman were hardened and experienced criminals. Mr Bowman has spent a lot of time in gaol. Upon release his livelihood depended largely on crime including committing drug offences. Mr Bowman earned about $500 to $700 per week for acting as a consignment agent for the sale of drugs. He had not been employed since 1991. 12 Mrs Bowman, in substance, did what she was told. She knew what was happening and assisted her husband as required. She used drugs herself. She appears to have been under her husband's domination. An important question is the extent of that domination. It played some part but she was prepared to go along with him and help him. She needed money to support and feed her children. She was not fussy about where the money came from. 13 The personal history of the applicant is set out in the report of Ms B Aldrich, consultant psychologist. She had a violent and disrupted childhood. She lived with various relatives. Much of her adult life has been disastrous. She lost her first baby to Welfare Authorities in Britain as a result of an uncle's action in handing over the baby. She had her second child in October 1975. That daughter was killed in 1983 when a car mounted the kerb and ran into her. This caused Mrs Bowman much distress. Mrs Bowman's marriage broke up after the child's death. Her mother tried to take all the children and succeeded in doing so with three of them for various periods. 14 Mrs Bowman met David Bowman in 1984 and married him in December 1985. She described him to the psychologist as a man who was generous with the children and a good father, but she also described behaviour which was emotionally abusive and intimidating. She was evicted from her house because he did not pay the rent. 15 In late 1996, as the time approached for her husband to be sentenced and go to gaol, he became more agitated and more violent towards her and the children. She moved out to avoid the violence and ended up living in a tent. 16 The report of Ms Aldrich about Mrs Bowman stated, inter alia: "She has had a series of unhappy and often violent relationships with men as well as suffering the removal of children and the death of another child. In the end this level of neglect, abuse and loss and the concomitant emotional harm has left Heather permanently scarred, and, not surprisingly, unable to make good judgments about people or her own behaviour.

Heather stays with men who show her affection even if they are violent and abusive as well. Heather says that she had begged David Bowman not to sell drugs, but he ignored her pleas and did it anyway. A woman like Heather is unlikely to stand up to a man like David. She saw no future in standing up to him or leaving him...". 17 The psychologist expressed some views about Mrs Bowman's health. It is necessary to make allowance for the spin which the applicant put upon her history and position. However, it should be accepted that with her emotional problems and disposition she finds it difficult not to succumb to strong partners who engage in illegal activities. 18 At the time of Mrs Bowman's sentencing and prior to that she had with her and was looking after two daughters from her previous marriage and her daughter by Mr Bowman. She also assisted a disabled pensioner aged 23. Mrs Bowman could not handle another daughter who is now in England with Mrs Bowman's mother. One of the three daughters with Mrs Bowman was raped. This daughter was hard to manage and needed a lot of attention. 19 Based on the terms of the transcripts of some tapes of some conversations between the applicant and her husband and the undercover police officer, the judge rejected the suggestion that the applicant just went along for the ride. It is difficult to determine from the transcripts what role Mrs Bowman played. Many of her answers are indecipherable and those that have been deciphered are not very helpful. She welcomed extra money and wanted to use it in furnishing her home. I think that the judge drew too much from the transcripts. I do not regard giving some spirited answers in cross examination as negating the proposition that she was under the domination and influence of her husband. I have not overlooked that she is capable of a degree of manipulation. 20 In all the circumstances it was not reasonably open to the judge to assess her culpability as half that of her husband. It was less than that. Further, her subjective features were more favourable and her family responsibilities were greater. This court is called upon to re-sentence. 21 Since the original sentencing her family circumstances have changed. She now has a flat in which to live. Two of her daughters no longer live at home, having established their own relationships. She cares for her youngest daughter. If the applicant was in full time custody her daughter would go to Mr Bowman. That would be a matter of concern, having regard to his criminal antecedents. 22 Mrs Bowman has aged well beyond her years and bears the marks of a lady who has had a tough life. Prior to her release on bail on 13 May 1997 she had been in custody for twenty five days. That equates to twelve weekends of periodic detention. She must receive credit for this. A sentence of fifteen months periodic detention would be appropriate if she had not spent twenty five days in custody. Taking into account this period in custody, I would impose a sentence of twelve months periodic detention. 23 I propose the following orders: 1. Leave to appeal against sentences granted. 2. Appeal against sentences allowed. In lieu of the sentences imposed the applicant be sentenced on each count to twelve months imprisonment to be served by way of periodic detention. The sentences are to be served concurrently. The applicant is to report to the Officer in Charge of the Tomago Periodic Detention Centre on or before 7pm on 26 March 1999. **********

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