Alliston v R - [2011] NSWCCA 281

Court of Criminal Appeal

New South Wales

Case Title: Alliston v R

Medium Neutral Citation: [2011] NSWCCA 281

Hearing Date(s): 3 August 2011

Decision Date: 16 December 2011

Jurisdiction:

Before:
McClellan CJ at CL at [1]
Simpson J at [54]
Fullerton J at [152]

Decision:
1. Leave to appeal granted.
2. Appeal dismissed

Catchwords:
CRIMINAL APPEAL - s25(2) Drug Misuse and Trafficking Act 1985 (NSW) - physical control of drugs but with the intention of returning them to the owner - Carey defence should have been left to jury - no adverse consequence for appellant - no miscarriage of justice - no lesser sentence warranted at law - appeal dismissed.

Legislation Cited:
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Maginnis [1987] AC 303
Dinsdale v R (2000) 202 CLR 321 at 325
Markarian v The Queen (2005) 228 CLR 357
Muldrock v The Queen [2011] HCA 39
O'Brien v Smith unreported, NSWSC, 9 May 1986
R v Asim, unreported, NSWCCA, 3 March 1997
R v Blair [2005] NSWCCA 78
R v Carey (1990) 20 NSWLR 292
R v EAS, unreported NSWCCA, 26 July 1990
R v Fong (unreported NSWCCA, 29 November 1996
R v Frazer [2002] NSWCCA 59; 128 A Crim R 89
R v Liberti (1991) 55 A Crim R 120
R v Small (1991) 54 A Crim R 460
R v Tuckey (1991) 57 A Crim R 468
R v Way [2004] NSWCCA 131; 60 NSWLR 168

Texts Cited:

Category: Principal judgment

Parties:
Jacinta Lee Alliston (Appellant)
Crown

Representation

- Counsel:
S Kluss (Appellant)
S Dowling (Crown)

- Solicitors:

File number(s): 2009/7753

Decision Under Appeal

- Court / Tribunal:

- Before: Hock DCJ

- Date of Decision: 30 July 2010

- Citation:

- Court File Number(s) 2009/7753

Publication Restriction:

JUDGMENT

McCLELLAN CJ at CL: The appellant was convicted of one count of supplying a commercial quantity of methylamphetamine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 ('the Act'). One significant matter raised in this appeal is whether the trial judge should have left to the jury the issue considered in R v Carey (1990) 20 NSWLR 292. The trial judge was asked to give the relevant direction but declined. There are further grounds of appeal concerned with the adequacy of the trial judge's summing up and the appropriateness of the appellant's sentence. The appellant also seeks leave to appeal her sentence. The trial judge imposed a sentence of 7 years with a non-parole period of 3 years and 6 months.
Schedule 1 of the Act provides that a commercial quantity of methylamphetamine is 0.25kg. A large commercial quantity of methylamphetamine is 1.0 kg and above.
The appellant was charged with a breach of section 25(2) of the Act for supplying not less than a large commercial quantity of methylamphetamine. Section 25(2) provides that:
"A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence."
The penalties for offences involving commercial quantities are found in section 33 of the Act . The penalty for supplying a commercial quantity is a maximum of 3,500 penalty units or imprisonment for 20 years, or both (s 33(2)). However, where the court is satisfied that the offence involved not less than a large commercial quantity of a prohibited drug the penalty is a fine of 5,000 penalty units or imprisonment for life, or both (s 33(3)).
Section 3 of the Act provides an extended definition of supply. It is in the following terms:
"Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, suffering, permitting, or attempting any of those acts."
Section 29 of the Act is an evidentiary provision which facilitates proof of the offence where a person has in their possession not less than the traffickable quantity. The traffickable quantity for methylamphetamine is 3.0 grams (schedule 1 of the Act). If the prosecution proves the relevant possession the onus shifts to the accused to prove on the balance of probabilities that the possession of the prohibited drug was for a purpose other than supply.
Relevant Facts
In the present case the appellant was travelling as a passenger in a car driven by her partner Mr Schirmer. They intended to drive from Sydney to Townsville. The car was stopped by the police at Glen Innes where Mr Schirmer was given a random breath test. He returned a negative result but when questioned by the police he volunteered that he had some marijuana in the glove box of the car.
The police carried out a preliminary search of the car and on the floor of the front passenger seat found a purse containing two resealable bags containing pills and a paste substance, both of which contained methylamphetamine. The paste substance weighed 27.3 grams and the pills weighed 102 grams.
Subsequently the police completed a thorough search of the vehicle. They found secreted in the rear of the vehicle 5 heat sealed bags containing tablets with methylamphetamine. The bags weighed a total of 973.5 grams.
Although not relevant to the issues raised in this Court, but no doubt of significance to the jury, was evidence that relatively large sums of cash had been deposited by the appellant, at Mr Schirmer's request, into bank accounts associated with him.
The appellant gave evidence at her trial. With respect to the drugs in her purse she said that they were not hers but that Mr Schirmer had given them to her to carry in her purse. The following exchange occurred when she gave her evidence-in-chief at the trial:
"Q. You're aware that the police found within the black purse a heat sealed bag containing another plastic Goliath bag with a number of pills in it, you're aware of that?
A. Yes.
Q. You're also aware, are you, that the police found a further amount of brown substance wrapped in a tissue?
A. Yes.
Q. How was that?
A. I think it was - it might've been the first day we got to Sydney we went to Dwayne's - oh yeah, sorry, I forgot about that - we went to one of Dwayne's friends' place and picked up the drugs.
Q. When you say the drugs, which drugs are you referring to?
A. The ones in my handbag.
Q. Can you describe to the jury what happened when you went out to Windsor - withdraw that. How did you get to Windsor?
A. We drove out in the red car, I think.
Q. Who's we?
A. Me and Dwayne.
Q. Was there anybody else?
A. No.
Q. So could you say what happened when you drove out to Windsor?
A. Well we got there and we got in the house and we were just chatting like in the lounge for a bit and when we went to go Dwayne asked me to put the drugs into my handbag to carry to the car.
Q. When you say he asked you to do that, did he do anything?
A. In - what do you mean?
Q. Who passed you the drugs to put them into your bag?
A. Dwayne did.
Q. He passed them to you and you put them in the bag, is that right?
A. Yes.
Q. Did that include the heat sealed bag with the pills inside?
A. Yeah, all of it, whatever was in there.
...
Q. So on 1 October when you drove with him out to Windsor and he asked you to put a bag of tablets into your purse what did you at that time think about Mr Schirmer?
A. Well I didn't - my first impression of him was like you know he runs his business and he was settled and all that. But when I seen that I didn't really know what I was getting into."
When cross-examined the following exchange occurred:
"Q. Tell us the details of everything you can remember about what you say you saw he gave you?
A. Yes and he just said "put it in your bag" and I did.
Q. That's all you saw when it was given to you?
A. Yes.
Q. You didn't look at it again until after the police retrieved it from your personal bag?
A. Yes.
...
Q. Did you understand that what you say Dwayne Schirmer gave you at Windsor were drugs?
A. I suspect it, yes.
Q. So were you worried that the police might locate those items in your purse?
A. No.
Q. You weren't worried?
A. No.
Q. Why weren't you worried about that?
A. Well because they weren't mine to begin with."
The appellant also gave evidence in respect of the drugs secreted in plastic bags in the car. Her fingerprints were identified on the bags. The appellant said that she had no knowledge of those drugs and proffered an explanation for her fingerprints being on them. The following exchanged occurred:
"Q. And at the time that you sent, at Mr Schirmer's request, these two outgoing text messages to Moz, were you aware at that stage of any of the drugs in the back seat of the car?
A. No.
Q. At that point in time what drugs did you think were actually in the car?
A. Just what was in my little black handbag, what was in my bra.
Q. And what was in your bra?
A. And I think he had a bit of cannabis in his bum bag."
The drugs secreted in the appellant's bra were, according to her evidence, discarded between the police search of the car and her subsequent arrest. According to the appellant a search was not done on her person, which afforded her the opportunity to discretely abandon the drugs. As such, these drugs were never listed on the indictment. The questioning continued:
"Q. Do you know who it was who was responsible for what was in the back seat of the car?
A. Well because Dwayne had asked me to put that stuff in my handbag in the front I just assumed that he was responsible.
Q. Do you know who was responsible for what was in the back seat of the car?
A. No, I don't."
In the course of her evidence the appellant was referred to a letter dated 4 February 2009 which she said she had composed. She said that the contents of the letter were not true but it had been written with the objective of helping Mr Schirmer to obtain bail so that he could be with his children. The letter reads as follows:
"To whom it may concern:
My name is Jacinta Lee-Jeanette Alliston.
I am currently in custody at Dillwynia Correctional Centre due to a circumstance which happened on the 3.10.08. My partner Dwyane Adrian Schirmer and I were pulled over for an (RBT) - Random Breath Test at 2am. Dwayne was driving and was breath tested at a reading below the legal limit and informed police that there was cannabis in the car when they asked of any drugs in the vehicle this lead to the car being searched and a large amount of drugs were found under the backseat and inside my handbag. Because of this my partner and I are both imprisoned awaiting court. I want to inform you Dwayne Schirmer had no knowledge of the drugs or the drugs being there. He had no involvement whatsoever. I hereby am admitting to having sole responsibility for the charges laid. Due to my irresponsible actions of this criminal offence Dwayne had property seized as stolen goods and cash seized as suspected unlawfully obtained which had no part in the crime. Also three young children of his are being deprived of his nurture and care and a carpentary business he cannot fulfill his duties of running as a victim of my crime. Don't let this man suffer the consequences I should be punished for.
Kind regards,
Jacinta Alliston" (sic)
The creation of the letter and the appellant's acknowledgement that it was not true was particularly damaging to her credit.
Four grounds of appeal were pleaded. The first three related to the conviction, the fourth was concerned with the sentence.

Ground 1: Her Honour erred by not directing the jury that the possession of the appellant must consider whether the possession was for other than supply.

Ground 2: Her Honour failed to sum up the case for the appellant.

Ground 3: Her Honour erred in not sufficiently identifying as a possible verdict that the accused was not guilty of all charges; the primary charge, the first alternative, and the second alternative

It is convenient to consider the grounds together.
The decision of this Court in Carey concerned the circumstance where a person has drugs under their physical control but always intends to return them to the owner or the person reasonably believed to be the owner. If the accused establishes the necessary intention an offence contrary to s 25 cannot be established. In these circumstances the accused will not have the relevant drug(s) in "his or her possession for supply". Supply as defined in s 29 of the Act does not "include the mere return of the drugs to their owner or to the person reasonably believed to be the owner" (Hunt J at p 294).
Hunt J emphasised that the words "sending, forwarding, delivering" are all qualified by the words "for supply." His Honour said at p 297:
"The word 'supply' where secondly appearing in s 29 of the Act therefore does not include the mere transfer of physical control of the drugs from a person who has had the drugs deposited with him to their owner or to the person reasonably believed to be such."
However his Honour acknowledged that in many, if not in most cases, the circumstances of the delivery would have the consequence that the accused was an accessory of the person by whom the delivery was affected.
In Carey the drugs were found in the appellant's bedside table. The appellant said that her sister had asked her to mind them overnight and that the sister intended to collect the drugs the next day. The appellant said that she did not herself use drugs and she intended to flush the drugs down the toilet if they were not collected by her sister.
A " Carey defence" has been held to be available in a number of other cases.
In R v EAS (unreported NSWCCA 26 July 1990) the evidence was that cocaine had been left with the appellant by his brother for "safe keeping" while the brother was interstate. A " Carey defence" was held to be available.
In R v Tuckey (1991) 57 A Crim R 468 the appellant was found in possession of 13.4 grams of cocaine. He gave evidence that he had agreed to sell some clothes to a man named Nigel, who did not immediately have the money available to pay for them but wanted to take them with him. Nigel offered to leave some cocaine as security. When arrested the appellant had been in possession of the drugs for a week and said that he intended to return them to Nigel. The court held that a " Carey defence" should have been left to the jury.
In R v Liberti (1991) 55 A Crim R 120 the accused gave evidence that he was holding the drugs for his friend until his friend asked for the drugs to be returned. The drugs were held by the accused for close to 32 months. The Court ordered a retrial on the basis that the " Carey defence" should have been left to the jury.
In R v Fong (unreported NSWCCA 29 November 1996) there was evidence that the appellant had been asked to look after the drugs. This Court said that there was a "real question whether his possession was for the purpose of supply or temporary custody and return to the owner" and that the issue should have been left to the jury.
Before a " Carey defence" can be sustained, it is necessary for the party raising it to demonstrate that the evidence is capable of proving that the accused's possession of the drugs was merely momentary or transient and that the accused intended to return the drugs to their owner ( R v EAS (unreported NSWCCA 26 July 1990; R v Tuckey (1991) 57 A Crim R 468; R v Frazer [2002] NSWCCA 59). Analogies have in the past been drawn to the concept of bailment ( R v Blair [2005] NSWCCA 78).
In the present case the possibility of a " Carey defence" was raised by defence counsel with the trial judge before the summing up. Her Honour questioned whether the defence was available in the absence of evidence from the appellant in which she said she intended to return the drugs to Mr Schirmer.
Counsel accepted that there was no evidence of the appellant actually stating or indicating that she intended to return the drugs. However, counsel stressed to her Honour that the relevant inference was available. Counsel emphasised the following exchange in the evidence of the appellant:
"Q. You knew you were going to be stopped at Glen Innes?
A. Well, I didn't know. I didn't know what he was doing with them. I didn't know if he was taking them back to Peter or who, where."
It was submitted that it is implicit in this answer that the drugs were Mr Schirmer's and that, insofar as some drugs were found in the appellant's purse, they remained in control of Mr Schirmer who would determine what would happen to them. Although the appellant did not expressly indicate that she proposed to return the drugs to Mr Schirmer, it was submitted that this inference was available from her evidence.
Having rejected the possibility of a " Carey defence" her Honour gave the jury the following directions. Her Honour said:
" ... you are aware that Ms Alliston in her evidence admitted that the accused Mr Shirmer gave her those bags, that is, the paste and the tablets, found in the black purse which I think is exhibit E. She says she had them effectively in her custody and control and said she effectively that she was keeping them for him. Effectively that they had joint possession of them. You have to decide whether you accept her evidence of that on that point. She specifically said in evidence that she knew that they were prohibited drugs. And as I have said before you are aware that the weight of those prohibited drugs was in excess of three grams."
To my mind it is clear, as her Honour acknowledged, that the appellant was in possession, at least, of the drugs found in her purse. The jury must also have found that she was in possession of the drugs secreted elsewhere in the car. However, the fact that she was in possession of the drugs does not mean that she was guilty of the offence of supply. In accordance with the decision in Carey before she could be guilty of supply the jury would have to be satisfied that she was both in possession of the drugs and was holding them for the purpose of supply rather than returning them to Mr Schirmer who had continuing control over them.
Although the appellant did not actually say in her evidence that her intention was to hold the drugs and later return them to her partner, in my opinion it was it was open to the jury to conclude, from her responses to the questions which she was asked as to how she came into possession at least of the drugs in her purse, that this was in fact the case. In relation to those drugs the " Carey defence" should be have been left to the jury and accordingly ground 1 of the appeal should be accepted. To that extent the trial judge's summary of the defence case was also inadequate. However, lest there be a misunderstanding, I express no view about the manner in which a jury might have resolved this issue.
This conclusion is not the end of the matter. Although I am satisfied that the " Carey defence" should have been left in relation to the drugs in the purse I can see no basis for it to have been left in respect of the drugs in the plastic bags in the car. The appellant denied all knowledge of those drugs but her evidence must have been rejected by the jury. The jury must have found that the appellant was together with Mr Schirmer in possession of those drugs. There was nothing in the evidence to suggest that her possession of them was transitory or that she intended to "return" them to another person.
The charge as framed included both the drugs in the purse and the drugs in the car which together weighed a total of 1,102.8 grams, placing the offence as charged into the category of a large commercial quantity. The jury did not find that offence proved, its verdict being confined to a commercial quantity of the drug. When sentencing the appellant the trial judge, as her Honour was required to do, made factual findings consistent with the jury's verdict and said:
"In Ms Alliston's case there are two bases on which the jury could have reached its verdict, the first is that she was not in possession of the drugs in the handbag. However, in the light of the jury's note, MFI 39, in my view it is more probable that they were not satisfied beyond reasonable doubt that she knew, or was aware, that there was a significant or real chance that the amount was more than the large commercial quantity. I propose to sentence her on that basis."

It may be that her Honour's conclusion is correct. The jury note, to which her Honour referred, asked whether the accused needed to understand the meaning of a large commercial quantity before she could be convicted. However, I do not believe that this is now of any significance.
In the result, in my opinion, although the " Carey issue" should have been left with the jury in respect of the drugs in the appellant's purse, the fact that it was not has had no adverse consequence for the appellant. She was convicted of the offence appropriate to the quantity of drugs in respect of which a " Carey defence" was not available. Although the trial judge did not leave the " Carey defence" and accordingly did not adequately put the appellant's case to the jury I am not persuaded that for that reason there has been a miscarriage of justice.
With respect to ground 3 of the appeal the trial judge directed the jury as to their possible verdicts in relation to both the appellant and Mr Schirmer. In the course of her Honour's summing up she provided the jury in writing with the alternative verdicts which were open to the jury. The document included the following:
"1. The accused is Guilty or Not Guilty of the charge on the indictment
2. The accused is Not Guilty of the charge on the indictment but is Guilty of supplying a commercial quantity of methylamphetamine (weight 250g)
3. The accused is Not Guilty of the charge on the indictment but Guilty of supplying a prohibited drug."
The appellant submitted that her Honour's directions, and in particular the written directions, pointed to only three available verdicts and did not include the possibility that the appellant might be not guilty of the principle charge and both the statutory alternatives. This issue was not raised at the trial and rule 4 applies.
A reading of the summing up confirms that the trial judge directed the jury as to the onus and standard of proof. Her Honour described the elements of the offence which the Crown must prove including the "fourth element" being "possession" of the drugs. When speaking to the written directions her Honour said:
"To find the accused not guilty of the charge on the indictment effectively means that you are not satisfied beyond reasonable doubt that he or she had possession of any of the drugs in the car. In other words the Crown would fail at that very fourth element. Then if the Crown fails on the fourth element that is the end of your deliberations in respect of that accused."
I have no doubt that the jury were aware that they could return a verdict of acquittal. In any event the verdict which the jury returned confirms that they were satisfied to the required standard that the appellant had in her possession a commercial quantity of the drug. The verdict makes plain that the jury were satisfied of all of the elements of the offence necessary for a conviction.
Defence counsel raised no issue with her Honour's direction and I am not persuaded that any further direction was required.
I would refuse leave to raise ground 3.
It follows in relation to the appeal against conviction that although ground 1 and 2 are made out the problem with the directions is confined to the drugs in the appellant's purse. However, having regard to the jury's verdict there has been no miscarriage of justice and I would dismiss the appeal against conviction.

Ground 4: The sentence was manifestly excessive in the circumstances and another sentence is warranted at law.

The appellant was sentenced for the offence of supplying a commercial quantity of a prohibited drug. The maximum penalty for this offence is imprisonment for 20 years and there is a standard non-parole period of 10 years ( Crimes (Sentencing Procedure) Act 1999 s 54A and item 18 in the Table to Division 1A of Part 4). Her Honour was of course sentencing before the High Court's decision in Muldrock v The Queen [2011] HCA 39 and followed the approach to sentencing required by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168.
Her Honour regarded the appellant's involvement in the offence as "falling significantly below the mid range of objective gravity" and in part for that reason her Honour did not believe that it was appropriate to impose the standard non-parole period. Although her Honour found that the appellant did not participate in the planning of the offence she nevertheless sentenced her on the basis that she played an active part in the packaging of the drugs located in the back of the car.
Her Honour said:
"The quantity of the drug, 953.5 grams, is towards the top of the range for a commercial quantity. However Ms Alliston's involvement in this offence was at a low level. It essentially came about because she had the misfortune to become emotionally attached to Mr Schirmer. Nevertheless, based on the fingerprint evidence, she assisted in the packaging of the drugs in the five heat sealed bags, and of course she was prepared to accompany him on the trip back to Townsville knowing that the car contained a large quantity of illegal drugs.
In her case no aggravating factors have been taken into account given her limited role. She was not part of any planning involved in the offence and any financial gain she made would be dependent on Mr Schirmer's goodwill.
I find that her offence falls significantly below the mid range of objective gravity, therefore again in her case it is not appropriate to impose the standard non-parole period. There are additional reasons for not doing so. They are:
- her youth and the fact that this is her first custodial sentence,
- that she has no prior convictions,
- her mental health issues and isolation in custody, which will make her term of imprisonment more onerous, and
- my finding that she has good prospect for rehabilitation.
In her case I do find special circumstances as in my view it is essential that she have a longer period of supervision on parole than that provided by the usual ratio for the reasons that I have outlined in this judgment."
With respect to subjective matters her Honour said:
"Turning now to consider matters personal to Ms Alliston, she is now 20 years of age. At the time of the offence she was only 18. She has no prior convictions in New South Wales. She and her twin sister are the youngest in the family of five girls. They were raised by their mother in Queensland. However, because her mother was battling mental health issues the offender spent periods of time in foster care. She has essentially no relationship with her father, who I gather was not part of the family from when the offender was very young. She has in effect been on her own, and without stable accommodation, since she was 15. In addition she has been physically and sexually abused. In summary, she has had an extremely difficult and to quote from the psychiatric report "chaotic childhood and adolescence". It is not necessary to relate further details in this judgment, but sadly she has not had the benefit of a stable early life. She was educated to year nine level and then engaged in a period of home schooling for a period of a few months. Her employment history is limited to a few brief casual positions. To the psychologist, Ms White, she expressed an interest in completing year 11 and 12 studies while in custody.
She would clearly benefit from undertaking as many educational and vocational courses as she can during the period she is in prison. I note that to date she has only been able to complete a drawing course, that may be because she has been on remand.
Since being arrested she has experienced anxiety and depressive symptoms, which is not surprising given her young age. In the psychiatrist's opinion:
'it is likely these in part relate to her experience of being in custody and I would consider that the onset of these symptoms in prison relate in part to the stress of isolation and incarceration.'
Of even greater concern is the evidence that there have been two episodes of self harm, and that the offender displays a number of symptoms of psychosis.
Dr Clark, who prepared the psychiatric report in July this year noted that:
'Ms Alliston will thus require close mental health monitoring, including periodic psychiatric review to monitor her mental state and response to medications.'
He went onto say:
'In addition to an antidepressant, which can assist in treating her depressive and anxiety symptoms, she may require treatment with anti-psychotic medications as well. I believe that a further trial of low dose anti-psychotic medication may be warranted.'
Dr Clark recommended that Ms Alliston receive cognitive therapy, which she is apparently now receiving. He also noted:
'Given her chaotic adolescence she will require counselling to assist her in developing appropriate coping strategies, and to interact in social relationships in ways which are less deleterious to her ongoing mental health, and will assist in her further development interpersonally, socially and vocationally.'
It is hoped that these recommendations will be acted on while Ms Alliston is in custody.
She too has a history of drug and alcohol abuse, and Dr Clark suggested that she refrain from use of both as it was likely such substances would impact negatively on her mental state. It is clear that she will need ongoing support when she is released, especially as she has few positive role models among her family members, and little, if any, support in the community. If she takes advantage of the vocational and health facilities available in custody in my view she has good prospects for rehabilitation."
The appellant submitted that her Honour's finding of special circumstances was appropriate but that in the circumstances the sentence imposed was erroneously excessive, in particular bearing in mind the low level of the appellant's criminality. It was submitted that the appellant was a vulnerable dupe and was in reality "in the wrong place at the wrong time".
There being no particular error identified by the appellant before she could succeed on this ground she must demonstrate that the sentence was "unreasonable or plainly unjust" conscious of the fact that there is no single correct sentence. This Court cannot substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that judge: Dinsdale v R (2000) 202 CLR 321 at [57]; Markarian v The Queen (2005) 228 CLR 357 at [26] - [28].
Although the sentencing judge found that the appellant was less culpable than her co-offender, she nonetheless was knowingly involved in the supply of the drugs and had played an active role in the packing of the drugs. It may be as the Crown submitted that her Honour's finding that the appellant was not part of any planning of the offence was lenient in light of the finding the she was involved in packing the drugs. Although I have not overlooked the appellant's subjective case, of which her Honour was clearly conscious and was reflected in the non-parole period having regard to the large quantity of drugs, and the appellant's knowing involvement in the preparation of the drugs for supply, I am not persuaded that the sentence is unreasonable or plainly unjust.
Although I would grant leave to appeal, the appeal against sentence should be dismissed.

Orders

1. Leave to appeal is granted.
2. The appeal is dismissed.

SIMPSON J: On 7 December 2009 the appellant and Dwayne Adrian Schirmer were arraigned in the District Court on an indictment that charged them jointly with supplying not less than the large commercial quantity of a prohibited drug (methylamphetamine). Each entered a plea of not guilty to the charge, and a trial before a jury proceeded. On 23 December 2009, the jury returned a verdict of guilty of the charge on the indictment against Schirmer; it found the appellant not guilty of that charge, but guilty of an alternative charge of supplying not less than the commercial quantity of the drug.
On 30 July 2010, Hock DCJ sentenced the appellant to imprisonment for 7 years, commencing on 3 October 2008, with a non-parole period of 3 years and 6 months, expiring on 2 April 2012.
The appellant appeals against the conviction and seeks leave to appeal against the severity of the sentence imposed. Schirmer has abandoned an appeal that he earlier filed.

Relevant legislation

It is convenient here to set out the relevant legislative provisions. All are contained in Part 2, Division 2 of the Drug Misuse and Trafficking Act 1985 ("the DMT Act "). The relevant provisions are:
"25(1) A person who supplies, or who knowingly takes part in the supply of, a prohibited drug is guilty of an offence.
...
(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence.
...
(3) Where, on the trial of a person for an offence under subs (2) [that is, supply of a commercial quantity] ... the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under subs (1) [supply of prohibited drug] ... and the person shall be liable to punishment accordingly."
"29 A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply; or
(b) ..."
"Supply" is given an extended definition. By s 3, it includes:
"keeping or having in possession for supply";
"sending, forwarding, delivering or receiving for supply"' "authorising, directing, causing, suffering, permitting or attempting any of those acts or things."
By s 3 and Sch 1 methylamphetamine is a prohibited drug. The traffickable quantity is 3 grams; the indictable quantity is 5 grams; the commercial quantity is 250 grams; the large commercial quantity is 1 kilogram.
Sections 32 and 33 provide for penalties on conviction for drug offences. Relevantly, pursuant to s 32(1)(c), the penalty for an offence under s 25(1) (supply) is imprisonment for 15 years. Pursuant to s 33(1)(a) and (2) the penalty for an offence under s 25(2) (supply of not less than the commercial quantity) is imprisonment for 20 years. Pursuant to s 33(3), where the offence involves not less than the large commercial quantity, the maximum penalty is imprisonment for life.

The Crown case

The Crown did not seek to prove any actual physical supply of the drug by either accused. Rather, it relied upon the deeming provision, s 29 of the DMT Act (above).
The Crown case was as follows. In the early hours of 3 October 2008, the appellant was a passenger in a red Nissan Exa motor vehicle, then being driven by Schirmer on the Midlands Highway near Glen Innes. At 2.30 am police signalled Schirmer to pull over for what was said to be random breath test. Schirmer pulled over and alighted from the vehicle. The appellant remained in the vehicle. A breath test was administered to Schirmer and proved negative. After a brief conversation with Schirmer, police decided to conduct a search of the vehicle. During this conversation, Schirmer told police that he had in the vehicle a quantity of cannabis.
At the request of police, the appellant alighted from the vehicle while they conducted a search. On the floor of the passenger side of the vehicle they located a black purse, which was found to contain a brown paste substance (later weighed at 27.3 grams) and some tablets (later weighed at 102 grams) in separate resealable plastic bags. The appellant acknowledged that the purse was hers. Later analysis revealed that both the brown substance and the tablets contained methylamphetamine.
The appellant and Schirmer were cautioned, arrested, and taken in a police vehicle to the Glen Innes police station. One of the police officers drove the Nissan to the police station, where it was secured in a police garage. A bum bag was found on the side of the driver's seat. When it was opened, it was found to contain more than $1,500 in cash, predominantly in $100 and $50 notes.
At the police garage a further search of the vehicle was conducted, in the presence of the appellant (but not Schirmer). This search revealed, under the back seat, a plastic bag. Inside the bag were a number of heat-sealed plastic bags, five in all. In turn, these bags contained another 21 bags, all containing variously coloured tablets. These weighed 973.5 grams. They were later analysed and shown to contain methylamphetamine. The appellant's fingerprints were found on three of the bags.
Also found in the appellant's purse were documents that included bank deposit slips for amounts of $9,500, $7,000 and $8,000. Although this was a significant piece of evidence, it appears to have little, if any, relevance to the grounds raised in the appeal, and can be passed over without further mention.
At 6.55 am on 3 October, following her arrest, the appellant was interviewed by police. The interview was electronically recorded. The appellant answered a number of questions, in the course of which she admitted to having used narcotic drugs in the past. When asked about the relationship between herself and Schirmer, she said it was:
"Excellent. Like I feel bad like 'cause, you know, I'm a bit of a bad girl. I'm being good but."
When asked to explain that, she said:
"Like, you know, I've tried drugs before. And he's told me about his life. He's living a pretty good life, you know. He's a good boy. He's got kids, he does well for 'em and, yeah."
She said that police searching the car had found a "billy" which she said was a "bong" or a device used for smoking cannabis. It was put to her that police had found cannabis in the glove box of the car. She said she agreed with that. When asked who the owner of the cannabis was, she said:
"I'm not putting a name to it."
She said that she did "not really" know that the cannabis was there.
The appellant confirmed that the black purse was her property and said that the bum bag belonged to Schirmer.
She was then asked about the money in the bum bag. At that point she declined to answer any further questions.
The appellant was not granted bail. She remained in custody from her arrest on 3 October 2008.
She remained in contact, by letter, with Schirmer, who was also, at that stage, in custody.
On 4 February 2009, the appellant wrote a letter (Exhibit R in the trial), addressed to "To Whom it May Concern". The letter read:
"My name is Jacinta Lee-Jeanette Alliston.
I am currently in custody at Dillwynia Correctional Centre due to a circumstance which happened on the 3.10.08. My partner, Dwayne Adrian Schirmer and I were pulled over for an (RBT) - Random Breath Test at 2 am. Dwayne was driving and was breath tested at a reading below the legal limit and informed police there was cannabus [sic] in the car when they asked of any drugs in the vehicle. This lead [sic] to the car being searched and a large amount of drugs were found under the backseat and inside my handbag. Because of this my partner and I are both imprisoned awaiting court. I want to inform you Dwayne Schirmer had no knowledge of the drugs or the drugs being there. He had no involvement whatsoever. I hereby am admitting to having sole responsibility for the charges laid. Due to my irresponsible actions of this criminal offence Dwayne had property seized as stolen goods and cash seized as suspected unlawfully obtained which had not part in the crime. Also three young children of his are being deprived of his nurture and care and a carpentary [sic] business he cannot fulfill [sic] his duties of running as a victim of my crime. Don't let this man suffer the consequences I should be punished for.
Kind regards
Jacinta Alliston"

The letter appears to have been written at the request (direct or indirect) of Schirmer, in order to facilitate an application made by him for bail.

The trial

Evidence in the Crown case was given in accordance with the above outline. The appellant gave evidence. She said that in 2008 she was living in Townsville, where she met Schirmer in July of that year, and that after about a month a relationship developed between them. She understood that he had a carpentry business, that he had recently broken up with his partner, and that he had three children. [From evidence given by Schirmer, it appears that he was, at the time, living in Sydney, but was holidaying in Townsville, and that after meeting the appellant, he made regular trips to Townsville, either by car or by air. There was documentary evidence recording a number of occasions on which Schirmer, and the appellant, had travelled by air between Sydney and Townsville.]
The appellant said that at the time she met Schirmer she was using "ecstasy and speed and ice", the last on a daily basis. With his help she ceased using drugs (or reduced her use).
She said that on three or four occasions she and Schirmer travelled to Sydney, where his children lived.
She said that at Schirmer's request she had on occasions deposited money in bank accounts in the names of other people. She believed that the source of the money was his carpentry business. She did not think that he was involved in illegal activity.
She said that, about two days before their arrest, Schirmer had asked her to fly to Sydney with him. She was reluctant to do so because she had other plans, but agreed because he wanted to see his children, and also because they intended to pick up a new car which they had purchased for her. They did in fact travel to Sydney, and pick up a new (second-hand) car, (the red Nissan) and were returning to Townsville when arrested.
She again identified the black purse as her property. She was asked about the drugs in the purse, and if she knew how they had got there. She said that she did know. It is necessary to extract, in some detail, some of her evidence in chief. The following is drawn from the transcript:
"Q Do you know who [sic] those items got into your black purse?
A Yes.
Q How was that?
A I think it was - it might have been the first day we got to Sydney we went to Dwayne's - oh yeah, sorry, forgot about that - we went to one of Dwayne's friend's place and picked up the drugs.
Q When you say the drugs which drugs are you referring to?
A The ones in my handbag.
Q Do you know what suburb you went to, or where you sent?
A I think it was out near Windsor.
...
Q How did you get out to Windsor?
A We drove out in the red car, I think.
Q Who's we?
A Me and Dwayne.
Q Was there anybody else?
A No.
Q So could you say what happened when you drove out to Windsor?
A Well we got there and we got in the house and we were just chatting like in the lounge for a bit and when we went to go Dwayne asked me to put the drugs in my handbag to carry to the car .
Q When you say he asked you to do that, did he do anything?
A In - what do you mean?
Q Who passed you the drugs to put them in your bag?
A Dwayne did.
Q He passed them to you and you put them in the bag, is that right?
A Yes.
Q Does that include the heat sealed bag with the pills inside?
A Yeah, all of it, whatever was in there.
Q What the about the amount of drugs that were wrapped in the white tissue?
A Yes, that was there.
...
Q So you put those drugs into your black purse?
A Yes.
Q Then what did you do?
A We left and went into the car and drove back to Pete's I think.
..." (AB2 362 - 383, T 335 -356, italics added)
The appellant also said that Schirmer had given her a small bag of ecstasy tablets which she concealed in her bra, after she and Schirmer had consumed one each. She said that these were still in her bra at the time police stopped the car, but that she disposed of them while police were attending to the arrest of Schirmer.
She said that during the course of the journey she thought that the drugs in the car were (only) those in her black bag, and in her bra, together with a small amount of cannabis in Schirmer's bum bag. She said she was unaware of the drugs under the back seat.
The appellant gave some evidence (relevant to the grounds of appeal) under cross-examination by counsel for Schirmer, as follows:
"Q You knew he wouldn't approve you having anything to do with these drugs?
A They weren't my drugs.
Q You did it behind his back didn't you?
A No.
Q At the time you were writing these letters you felt terrible about what you had done to Dwayne Schirmer, didn't you?
A No, at the time I wrote the letters I was showing him how much I was thankful. When you are born into a family of drug addicts, paedophiles and prostitutes and then you try your whole life to get away and escape from that and then you finally get someone you think God has sent me an angel to take me away from all of that, I was doing everything fucking could from the first minute to get him out of this." (AB 446, T419)
...
"Q Did you understand that what you say Dwayne Schirmer gave you at Windsor were drugs?
A I suspected it, yes.
Q So weren't you worried that the police might locate those items in your purse?
A No.
Q You weren't worried?
A No.
Q Why weren't you worried about that?
A Well because they weren't mine to begin with." (AB 447, T420)
...
"Q We will do it one at a time, Ms Alliston. Dealing with the methylamphetamine tablets in [sic - and] the paste which was located by police in your purse I am putting to you that Mr Schirmer had nothing at all to do with that?
A He did.
Q He didn't give it to you?
A Yes, he did." (AB 529 - 530, T502 - 503)
In the transcript of the cross-examination of the appellant by the Crown Prosecutor the following passages appear:
"Q What did you think was going to be happening to the drugs, that's the tablets and the paste in your purse that would otherwise have gone to Queensland but for being stopped at Glen Innes?
A I don't know, I just - Dwayne and his mates were doing their thing. I don't know what was going on until I saw that.
Q Well they weren't going to be used I suggest for either your or your and Dwayne's personal use, correct?
A Yes
...
Q What you took from Dwayne at Windsor and put in your purse and kept with you on the road north up the New England Highway were drugs that were more than for personal use I suggest?
A Not for me, no.
Q No. They were for supply in Queensland?
A I don't know what he wanted to do with them.
...
Q Well going back to my second suggestion to you was that as part of the storing and transporting of those drugs in the purse earlier at Windsor was that you knew that they were being - ultimately to be used for sale later in Queensland?
A I didn't know that. I didn't know what his deal was with his mates." (AB2 539-540)
...
Q Did you examine what you received from Dwayne Schirmer at all?
A No, it was just sitting on the table, on the end of the coffee table, I was on a chair here, Dwayne was there, and the other dude was here and it was sitting there and all I could see was the tissue bit wrapped on top of the plastic and he just said, 'Can you put this in your bag?', and I just grabbed it and put it in my bag and put it in the car.
...
"Q So is it the case that you received one bundle, as it were, or one item from Mr Schirmer?
A Yeah.
Q You knew they were drugs though, didn't you?
A Yeah, I figured they were.
Q They were, weren't they?
A Yes.
Q You took them from the house at Windsor knowing they were drugs?
A Yes.
Q It was more than suspicion, wasn't it, it was belief?
A Yes.
Q You were doing the person you loved a favour at the time?
A Yeah.
Q You didn't take them for your own use?
A For my own use?
Q Yes?
A No, I didn't know if - like we were going to be having them, or what.
Q You knew they were heading off to Queensland but for being stopped at Glen Innes?
A Well I didn't know. I didn't know what he was doing with them. I didn't know if he was taking them to Peter or who, where.
Q But you had them with you when you left Sydney?
A Yeah. I totally forgot they were on the floor in my handbag because when I put them in the car like that's where they remained until the cops had found them.
...
A Yeah, I just totally forgot that they were in the car. I didn't know - because I was drinking and stuff and I wasn't focussing on what he was doing.
Q You're not suggesting to the jury that you had forgotten that they were drugs, just that you'd forgotten that they were there?
A Oh no I knew - yeah, I just forgot they were there. I know [sic] they were drugs." (AB2 587 - 588)
The appellant explained how the letter (Exhibit R) came to be written. She said that she had received from Schirmer a letter (Exhibit 6) dated 9 December 2008 (his birthday), among many other letters. In that letter, he wrote ( inter alia ):
"So pray for me babe, but I need you to do a couple of things for me. When you speak to jason next he will let you know what I need you to do. So thank you for being by my side and being there for me! Without you I would be lost and lonely ..."
She said that she understood what he required her to do was to write a letter saying that he had nothing to do with the drugs. ["Jason" was Jason Pardey, Schirmer's brother-in-law.] Mr Pardey did visit the appellant in prison where they spoke about the letter. She said:
"Well it's to do with when I was in the back of the police car and I said 'I will do whatever I can, I'll try to get us out of this', and they'd asked me to write the letter and I knew he needed to get out and see his kids and that and sort stuff out so I helped him by writing the letter." (AB2 388 - 389, T361 - 362)
In that context, she gave the following evidence (in chief):
"Q Did you write that letter because you knew at the time when police arrested you that there were drugs in the back seat of the car?
A No.
Q When you wrote that letter what were your feelings towards Mr Schirmer?
A Like I said before, I would have done anything for him.
Q Is that what you did in writing the letter?
A Yes.
Q When the police pulled over the car for the random breath test did you have any idea what was in the back seat of the car?
A No.
Q Do you know who it was who was responsible for what was in the back seat of the car?
A Well because Dwayne asked me to put that stuff in my handbag in the front I just assumed that he was responsible.
Q Do you know who was responsible for what was in the backseat of the car?
A No, I don't." (AB 388 - 389, T 361 -362)
Schirmer also gave evidence, at some length. He denied his guilt of the offence and gave an account, in considerable detail, of his movements shortly before and up to the time the two were arrested. The import of his evidence was that he knew nothing of the drugs, either those in the appellant's purse, or those in the back of the car.
Put simply, each accused denied knowledge of the drugs under the back seat of the car, and blamed the other for their presence. The appellant acknowledged possession of the drugs in the purse, but said that she held them at Schirmer's request; Schirmer denied knowledge of those drugs also.
At the conclusion of the final addresses by the Crown Prosecutor and counsel for Schirmer, counsel who appeared for the appellant sought to confirm that the alternative verdicts that would be left to the jury were:
·supplying a large commercial quantity of methylamphetamine;
·the statutory alternative of supplying the commercial quantity of methylamphetamine and a third alternative of supplying a traffickable quantity of methylamphetamine.

She agreed with her Honour that supply of a traffickable quantity would amount to "supply simpliciter ". She then sought a direction "in terms of Carey and Liberti " but expressly limited the application for such a direction to the third alternative of supplying a traffickable quantity of the drug. The reason for that will become apparent. I will explain below the nature of the direction counsel sought.
After discussion, her Honour declined to give such a direction. She did so because she considered that there was no evidentiary basis to support it. That ruling is the foundation for grounds 1 and 2 of the appeal.
Counsel for the appellant then addressed, and her Honour summed up. She gave the jury three documents. The first (MFI 37) set out written directions. (MFI 37, in fact, consisted of two separate documents, identical, one each in relation to the accused.) The written directions were expressly stated "to be read in conjunction with the oral directions given". That in relation to the appellant was in the following terms:
"The Crown must prove beyond reasonable doubt that on 3 October 2008 at Glen Innes:
1. the tablets and substance contained methylamphetamine; and
2. methylamphetamine is a prohibited drug; and
3. the amount of the drug was more than the traffickable quantity (which is 3 g); and
4. the accused had more than the traffickable quantity of methylamphetamine in her possession ; and
5. the total amount of the prohibited drug was more than the large commercial quantity applicable to methylamphetamine (which is 1000 g); and
6. the accused had more than the large commercial quantity of methylamphetamine in her possession; and
7. the accused knew the amount of the prohibited drug was more than the large commercial quantity applicable to methylamphetamine.
Possession means:
a. the accused intentionally had the substance in her physical custody or control to the exclusion of others, except anyone who was acting jointly with her in committing this alleged offence; and
b. the accused knew or believed at the time that it was a prohibited drug. The Crown must prove beyond reasonable doubt that the accused knew or believed that what she had custody or control of was a prohibited drug, or was aware there was a significant or real chance that it was."
The second document (MFI 38), that related to both accused, was entitled "Possible Verdicts" and was as follows:
"1. The accused is Guilty or Not Guilty of the charge on the indictment.
2. The accused is Not Guilty of the charge on the indictment but is Guilty of supplying a commercial quantity of methylamphetamine (weight 2.50g).
3. The accused is Not Guilty of the charge on the indictment but Guilty of supplying a prohibited drug."
This document, to which no objection was taken at trial, is the foundation for ground 3 of the appeal.
During the course of the oral directions, the trial judge asked the jury to amend their copies of the written directions by inserting, in directions 6 and 7, brackets around the words "large". She did this in order to draw to the jury's attention the possibility of what was said to be the statutory alternative to the charge on the indictment, a verdict of guilty of supply of a commercial quantity, as distinct from a large commercial quantity. In relation to the "Alternative Verdicts" written direction she elaborated by saying:
"Firstly, the accused is guilty or not guilty of the charge on the indictment, as I have just said. For the accused to be guilty of the charge on the indictment the Crown must satisfy you beyond reasonable doubt of all seven elements, including large commercial quantity, element 6 and large commercial quantity, element 7.
To find the accused not guilty of the charge on the indictment effectively means that you are not satisfied beyond reasonable doubt that he or she had possession of any of the drugs in the car. In other words the Crown would fail at that very fourth element. Then if the Crown fails on the fourth element that is the end of your deliberations in respect of that accused. ..."
She went on to deal with the second and third alternatives on the document.
The jury retired to consider its verdict at 2.22 pm on 22 December 2009. At 3.11 pm they sent the trial judge a note (MFI 39) in the following terms:
"The jury needs clarification on point 7 again. Does the accused need to understand what large commercial quantity means?"
Her Honour directed the jury that they did not have to be satisfied that the accused knew the precise amount of the drug, but that the Crown did have to prove that the accused "actually knew, or believed" that the quantity he or she had in possession was not less than the relevant quantity - that is the commercial quantity, or the large commercial quantity.

The grounds of appeal

The grounds of appeal are pleaded as follows:
"1. Her Honour erred by not directing the jury that the possession of the appellant must consider whether the possession was for other than supply [sic].
2. Her Honour failed to sum up the case for the appellant.
3. Her Honour erred in not sufficiently identifying as a possible verdict the accused was not guilty of all charges; the primary charge, the first alternative, and the second alternative.
4. The sentence was manifestly excessive in the circumstances, and another sentence is warranted at law."
Grounds 1 and 2
The foundation for these grounds is the refusal of the trial judge to direct the jury in accordance with the express request may by counsel for the appellant .
The application was based upon the decision of this Court in R v Carey (1990) 20 NSWLR 292, followed in R v Liberti (1991) 55 A Crim R 120. It is convenient here to extract the principle stated in those decisions. In Carey Hunt J (as he then was), with whom Wood and Finlay JJ agreed, said:
"The word 'supply' where secondly appearing in s 29 of the Act [ie in sub-para (a)] therefore does not include the transfer of physical control of the drugs from a person who had the drugs deposited with him to their owner or to the person reasonably believed to be such. Although the issue does not directly arise in this appeal it is clear ... that the same construction must also be applied to the word 'supply' in the phrase 'having in possession for supply' in the definition of 'supply' in s 3."
The facts in Carey were simple. The appellant had, in a bedside table, traffickable quantities of two different drugs. She did not dispute the possession. She told police that the drugs had been left with her by her sister, to mind overnight, and that her sister was to collect them the following day. If her sister did not do so, it was the appellant's intention to flush them down the toilet.
The Court held that it ought to have been (but was not) left to the jury to determine whether the appellant had proved (within s 29(a)) that she had the drugs in her possession "otherwise than for supply". The decision turned on the meaning of "supply" in that context.
In O'Brien v Smith (unreported, NSWSC, 9 May 1986), Yeldham J had reached a similar conclusion in relation to similar provisions in the Poisons Act 1966.
The decision in Carey is about no more and no less than the meaning of the word "supply" as it appears in the exception (in para (a)) to the deeming provision enacted by s 29. Section 29 does three things. First, it creates a presumption, adverse to a person shown to be in possession of more than the traffickable quantity of a prohibited drug (ie that the drugs are in possession for supply to another). Second, s 29, in paras (a) and (b), creates two exceptions to that presumption. The relevant exception is that created by para (a): that the person had the drugs in his or her possession otherwise than for supply. Third, it casts the onus of proving that the exception applies on the accused person. It is commonly said that sub-paras (a) and (b) provide statutory defences, where the evidence otherwise would be sufficient, by reason of the presumption created by the opening words of s 29, and by reason of the extended definition of "supply" in s 3, to establish possession for the purpose of supplying to another. Carey explains that what is meant by "supply" in the statutory defence includes its ordinary meaning (of furnishing or providing something needed or required by its recipient) as well as the extended s 3 meaning.

All the decision in Carey does is to confirm that, where an accused person adduces evidence capable, if it is accepted, of proving that he or she had the relevant quantity of drugs in possession otherwise than for supply, that question must be left to the jury for determination. Whether the evidence in any trial is capable of raising that issue will be a matter for individual determination in all the circumstances of the individual case. Carey does not create or state any new principle or proposition of law; it clarifies the meaning of "supply" in s 29(a).
The principle of Carey is that, where the evidence in a trial permits a finding that the physical possession or control of drugs by a person is transitory (that is, where that person is "a temporary minder" of the drug: see R v Frazer [2002] NSWCCA 59; 128 A Crim R 89 at p 91), then the jury must be directed accordingly.
What was stated in Carey has been applied in a number of subsequent cases. I will defer for the moment further consideration of those cases.
"Supply" is, as mentioned above, in s 3 given a definition that is considerably wider than its ordinary meaning. But the extended definition is not without any boundaries. In relation to the s 3 definition, in Carey , Hunt J said:
"None of the various limbs of that extended definition would include the mere return of the drugs to their owner or to the person reasonably believed to be the owner. References to 'sending, forwarding, delivering' are all qualified by the words 'for supply'.
The word 'supply', however, retains its ordinary meaning as well as the extended meaning for which that inclusive definition provides. The various dictionary meanings of the word are generally agreed as being to furnish or to provide something which is needed or wanted or required by the person to whom it is given. They do not suggest that the use of the word is appropriate when that something is merely returned to its owner or the person reasonably believed to be its owner." (p 294 F-G)
The question for this Court is whether the evidence given by the appellant was sufficient to call for the s 29(a) defence (or exception) to have been left to the jury for determination; that is, whether her Honour was in error in declining to take that course. It is necessary to bear in mind that the s 29(a) defence or exception was, to the extent that it was raised at all, raised only in relation to the traffickable, but relatively smaller, quantity of drugs in the purse. The appellant, in denying any knowledge of the drugs under the back seat, made no claim that she possessed them otherwise than for supply.
The decision in Carey has been invoked, and considered, in a number of appeals to this Court, to which both counsel referred. It is fair, I think, to say that its application depends upon the final analysis of the evidence in the trial. Cases in which it has been held that the defence was available on the evidence, and ought to have been left, include R v EAS, unreported NSWCCA, 26 July 1990; R v Tuckey, unreported, NSWCCA 11 May 1991; R v Liberti (1991) 55 A Crim R 120; R v Fong (unreported NSWCCA, 29 November 1996; R v Frazer [2002] NSWCCA 59; 128 A Crim R 89. It is unnecessary to say more about EAS ; the case was heard in conjunction with Carey , with which it was said to be "on all fours" and judgment was given immediately after the judgment in Carey .
It has been held not to have been available in R v Small , unreported NSWCCA, 31 May 1991; R v Asim , unreported, NSWCCA, 3 March 1997; R v Blair [2005] NSWCCA 78.
In Frazer , the appellant, a 38 year old woman, was one of three people in a motor vehicle driven by the appellant's boyfriend. The vehicle was stopped by police who announced that they intended to search the vehicle as they suspected that it was carrying prohibited drugs. The search revealed a number of capsules in the vehicle itself.
When female police officers told the appellant that they proposed to conduct a search of her, and asked her if she had anything to disclose, she told them that she had "a bubble" but she did not know what it contained. It was concealed in the front of her pants. When asked why it had been there concealed, she did not respond, but produced a container that proved to contain a quantity of methylamphetamine. In an interview, the appellant told police that she had found the container in a public street, but had not opened it, and did not know what was in it. In answer to a direct question, she said that she had not been given the item by anybody else.
In her trial, the appellant gave very different evidence. She said that she was travelling with her boyfriend at his request, but that, prior to departure, had taken an analgesic because of a headache, as a result of which she became quite drowsy. She said that she partially woke when the car was parked in a service station and that her boyfriend woke and asked her to take and "put away" a "bubble-like container". She said that she had intended to return the capsule to her boyfriend once he had paid for petrol. She fell asleep, and then became aware that her boyfriend was telling her that the police were following them.
She gave an explanation for the earlier version she had given.
The issue on appeal in Frazer was not whether the evidence adequately raised an issue concerning s 29(a), but whether the jury had been adequately directed with respect to what it was held had been clearly enough raised in the appellant's evidence. The Court held that it had not been sufficiently explained and ordered a new trial. The reasoning in Frazer casts no light on the present issue.
Liberti was a somewhat curious case. The appellant had entered a plea of guilty to two counts of supplying a prohibited drug (amphetamine). There was no evidence of actual supply; the prosecution relied upon the deeming effect of s 29. An agreed statement of facts was put before the sentencing court. The statement of facts included information that a search of the appellant's home had produced a quantity of amphetamine concealed in a light fitting, and that, on interview by police, the appellant had said that he was minding the drug for a friend whom he knew to be a supplier. He refused to name the friend, but said that the friend had asked him to take care of the drug because he was afraid that his own house might be searched. The appellant said that he was to return the drug to its owner at a later date.
In that case the Crown conceded that, notwithstanding the plea of guilty, he could not and should not have been convicted because the agreed statement of facts was insufficient to sustain a conviction in the circumstances. This Court accepted that concession as properly made. Liberti casts no light on the present issue.
In Tuckey , the appellant was the proprietor of a "clothing studio". Police attended and asked him if he had any drugs in his possession. He disclosed that a sideboard contained a package of cocaine. Of this, he told police:
"A person owed me some money and he asked me to keep it until he could give me the money."
In evidence on his trial, he gave a slightly expanded account to the same effect, saying that a man called "Nigel" had come to the studio and selected some clothing he wished to buy, worth about $950. He said that he had no money with him but would return with the money, and wanted to take the clothing with him. Eventually, after some argument, "Nigel" gave the appellant a bag of cocaine as "collateral", telling him that it was worth more than the value of the clothing. "Nigel" left and never returned. The appellant said he thought that "Nigel" would return and said that he was not going to do anything with the cocaine.
This trial took place before the decision in Carey was delivered and the trial judge gave directions not in accordance with Carey , but, in fact, in accordance with a contrary decision of the House of Lords which this Court in Carey declined to follow ( Maginnis [1987] AC 303; and see Carey at 295F - 297A).
This Court held that a direction in accordance with Carey ought to have been given. For reasons upon which it is not necessary to elaborate, the Court declined to order a new trial and entered a verdict of acquittal. Toohey was an instance of the application of Carey , on the specific evidence addressed in the trial.
Fong is another curious case. The allegation against him was that a substantial quantity of heroin had been found secreted in premises occupied by him. Police gave evidence that, in a conversation with Fong, he claimed that he had been asked to look after the drug, and had had it for three days, but declined to name the owner. On those facts, it was held, a Carey direction would be called for. The curiosity is that, in the trial, Fong gave evidence denying that conversation, and denying any knowledge of the heroin. The Court held that a s 29(a) defence could be established by evidence in the Crown case, as well as in the defence case, and that the conversation attributed to Fong by police was a sufficient basis for the jury to accept that he was in possession of the drug otherwise than for supply. The jury having been expressly directed in a contrary way, the Court upheld the appeal ordered a new trial.
On the other hand, there are cases in which it has been held that the facts do not justify a direction based on Carey . In Asim , the appellant, who had been found in possession of heroin, said in evidence that he had intended to return the drug to the person whom he believed was entitled to it. However, he also said that he intended to use the drug as "leverage" to persuade another person to repay a debt which he owed to the appellant. At trial it was held, in effect, that possession for such a purpose amounted to possession for supply, and did not come within the s 29(a) exception. That ruling was upheld on appeal to this Court.
In Blair, a quantity of drugs was found in a freezer in the appellant's home. Initially, he said he had no idea what it was. When asked if he could say who owned the drug, he said that he could, but declined to do so. He then told police that a friend from South Australia, whom he declined to name, had asked him to drive to Coogee to collect a parcel. (The appellant was a courier by occupation.) He went to Coogee, was approached by a person who identified him, and handed him three bags of white powder. He took this home and put it in the freezer in containers. He did not know what it was, but suspected it may have been heroin. Neither the friend from South Australia nor anybody on his behalf had come to collect the substance.
This Court held that the facts as alleged by that appellant could not come within the Carey principle. The Court quoted and adopted a passage in Carey to which I have not previously alluded. Hunt J added:
"I should also refer to one very common situation which that construction [of supply] should not be understood as including. That is the situation where one person has obtained a quantity of drugs on behalf of another person or on behalf of a group of persons (which may or may not include himself) and where he transfers physical control of those drugs (or some portion of them) to that other person or to those other persons. That is in no sense analogous to the 'bailment' situation as is that with which the present appeal is concerned, and in my view such a situation would necessarily fall within the ordinary meaning of the word 'supply'."
In Blair , Grove J, with whom James and Barr JJ agreed, said:
"16 The appellant's assertion of facts, if accepted, would fall within that situation which is expressly distinguished from that of Ms Carey. The appellant received the drugs from the Coogee man on behalf of the South Australian man. He was not a receiver of them from the latter as a mere custodian but was a link in a chain of intended supply commencing with the man at Coogee and passing through the appellant's possession ultimately to the man from South Australia. That does not demonstrate a possession by the appellant 'otherwise than for the purpose of supply'."
From the above review of cases, it can be seen that whether a Carey direction ought to be given or not depends upon a close analysis of the evidence, whether given by an accused person in the trial, or by way of response to police questioning, or that otherwise emerges during the course of the trial. Fine distinctions may emerge. Based on Blair , for example, a distinction may be drawn between a passive custodian, and a custodian who becomes part of the supply chain. It is therefore necessary to analyse in a little more depth the considerable complications that attended the trial of the appellant.
The sole allegation against the appellant (and Schirmer) was of supply of a large commercial quantity of methylamphetamine, constituted by their joint possession of the entire quantity of that drug found in the car, both in the appellant's purse, and in the back seat. The charge did not distinguish between the two separate packages. Neither quantity alone was sufficient to constitute a large commercial quantity. A large commercial quantity is one kilogram: the drug found in the back of the car, at 973.5 grams, fell short of that quantity. It was more than sufficient to constitute a commercial quantity, of 250 grams. It was only in combining that quantity with the 27.3 grams in the brown paste, and the 102 grams in the tablets (the drug contained in the purse), that the quantity could be made to exceed one kilogram.
Thus, in order to prove the appellant guilty of the supply of the large commercial quantity, it would be necessary that the Crown prove that she (knowingly) had possession of both the drug in the purse and the drug under the back seat, and that she knew that, in total, it amounted to one kilogram or more.
There was no difficulty in proving the appellant's possession of the drug in the purse; she admitted as much in her evidence. Her position on appeal is that her defence to that (which was never as clearly articulated by her as it might have been) was that, in accordance with Carey , she was a mere transitory custodian of the drug, which she held on behalf of Schirmer (and would return to him, or at his direction). Examination of her evidence, however, reveals that she never explicitly, or indeed, by any clear implication, made that claim. At most, she said (in chief) that Schirmer had asked her to put the drugs in her handbag to carry to the car. In cross-examination by counsel for Schirmer, she repeatedly denied that the drugs were hers. In cross-examination by the Crown Prosecutor, she said that she did not know what Schirmer (or his mates) intended doing with them. But she made no mention of her own intention with respect to the future disposal of the drugs.
This is some way short of claiming transitory possession with the intention of returning the drugs to their owner.
The appellant was represented at trial by counsel who was, if the transcript is a fair indication, alert to the various issues that arose. She was certainly aware of the Carey issue; she asked for a direction in accordance with that decision, and also mentioned Liberti . She did not ask the appellant the critical question.
Hock DCJ was correct to decline to direct the jury in accordance with Carey .
The appellant also denied outright all knowledge of the larger quantity of the drug in the back of the car. That made it impossible for her to raise a Carey defence in relation to that quantity: R v Small (1991) 54 A Crim R 460. The judgment in Small makes it quite clear that where an accused person denies knowledge of the presence of a drug, there is no evidentiary basis to establish possession for a purpose other than for supply.
It is clear that the jury rejected the appellant's denial of knowledge of the drug under the back seat of the car. Had they not done so, they could not have found her guilty of supply of not less than the commercial quantity. They would have been left only with the much smaller quantity contained in her purse, which was significantly less than the 250 grams required to establish a commercial quantity.
Given the different position adopted by the appellant in relation to the two quantities of drugs, it was necessary to differentiate between those in the directions to the jury. It is necessary now to analyse with some particularity the jury's verdict.
The possibilities are:
1. the jury accepted that the appellant was in (knowing) possession of the drugs in the purse. (That the jury was so satisfied is, given the evidence, highly likely, virtually inevitable.) In that case (subject to s 29(a) and Carey ), it would find her guilty of the supply of not less than the traffickable quantity;
2. the jury accepted that the appellant was in (knowing) possession of the drugs under the back seat of the car (rejecting her evidence that she did not know of their presence), but not of the drugs in her purse. In that case it would find her guilty of supply of not less than the commercial quantity;
3. the jury accepted that the appellant was in knowing possession of both quantities of drugs. In that case (again, subject to s 29(a) and Carey in relation to the drugs in the purse) it would find her guilty of supply of the large commercial quantity.
The only way in which the jury could arrive at a verdict of not guilty of supplying the large commercial quantity, but guilty of the supply of the commercial quantity, was by applying, even in the absence of instruction, the Carey principle - that is, accepting that the appellant held the drugs in the purse on behalf of Schirmer.
There is no other basis on which the appellant could have been found guilty of the offence of which she was convicted. In this respect, the conviction of Schirmer on the charge on the indictment is of some relevance. That verdict is consistent with the jury accepting that the drugs in the purse were his, held by the appellant on his behalf, and that the larger quantity in the car was in the joint possession of the two accused.
In her sentencing remarks, the trial judge said:
"In Ms Alliston's case there are two bases on which the jury could have reached its verdict, the first is that she was not in possession of the drugs in the handbag. However, in the light of the jury's notice, MFI 39, in my view it is more probable that they were not satisfied beyond reasonable doubt that she knew, or was aware, that there was a significant or real chance that the amount was more than the large commercial quantity. I propose to sentence her on that basis."
I am unable to accept this construction of the verdict. The note did not differentiate between the two accused. There was no basis in the evidence for concluding that the appellant might not have known of the presence of sufficient of the drug to constitute the large commercial quantity, but did know of the presence of sufficient to constitute a commercial quantity.
It is also of some relevance to note that, during the course of argument at a very late stage, after the final addresses of counsel, the judge commented on how "extraordinarily attentive" the jury had been (AB 961). I would reject grounds 1 and 2 of the appeal.
Ground 3
The complaint in relation to this ground is based upon the document provided to the jury, entitled "Possible Verdicts"; specifically, that only three possible verdicts were identified. Omitted from the jury's consideration was a verdict of not guilty of any offence.
The first possible verdict specified on the document was of "Guilty or Not Guilty of the charge on the indictment" - that is, of supply of the large commercial quantity of the drug. The subsequent possible verdicts were, in descending order of seriousness, of Not Guilty of that charge, but Guilty of the lesser offence of supplying a commercial quantity; or of Not Guilty of the offence on the indictment, but Guilty of supply (quantity unspecified, and therefore less than the traffickable quantity).

As I have indicated in my consideration of grounds 1 and 2, the second alternative could only have been reached by finding the appellant guilty of knowing possession of the drugs under the back seat, but excluding those in the purse.
But the current question is whether a fourth alternative - not guilty of any offence - ought to have been included in the document. Perhaps it would have been better if it had, although that did not suggest itself to either counsel at the trial. It is also necessary to have regard to the oral directions. These were as follows:
"Firstly, the accused is guilty or not guilty of the charge on the indictment, as I have just said. For the accused to be guilty of the charge on the indictment the Crown must satisfy you beyond reasonable doubt of all seven elements, including large commercial quantity, element 6, and large commercial quantity, element 7.
To find the accused not guilty of the charge on the indictment effectively means that you are not satisfied beyond reasonable doubt that he or she had possession of any of the drugs in the car. In other words the Crown would fail at that very fourth element. Then if the Crown fails on the fourth element that is the end of your deliberations in respect of that accused. ..."
Thereafter, her Honour reiterated the content of the written directions and then said:
"Both accused, as you know, deny all knowledge of the drugs in the back of the car. If you are not satisfied beyond reasonable doubt that either accused, when you are considering each case, knew anything about the drugs in the back of the car, your verdict would be not guilty of the charge on the indictment, but guilty of supplying a prohibited drug. If you are satisfied that the accused knew something about the drugs in the bag, or was in possession of the drugs in the bag, there are a number of different possibilities, of course, depending upon your findings in respect of the evidence about the two discrete quantities of drugs and that is why it is a little bit complicated for you.
Your findings may involve, as I am sure you are aware, that both accused knew about all the drugs. That one accused knew about the drugs in the back of the car and the other did not. That one accused knew about the drugs in the purse and other did not. There are a number of combinations. For that matter, that neither of the accused knew anything about the drugs in the car. They are all matters that you have to decide as your role as judges of the facts."
In my opinion, the jury could not have been under any misapprehension that an outright acquittal was one of the alternative verdicts available. Had the possibility of such misapprehension been a realistic one, it would have been apparent to one or both counsel. The directions, taken in conjunction with the oral directions, were adequate.
I would reject this ground of appeal.
With respect to the application for leave to appeal against sentence, I agree with McClellan CJ at CL.
FULLLERTON J: I have had the advantage of reading the judgments of McClellan CJ at CL and Simpson J.
In so far as grounds 1 and 2 of the appeal against conviction concern the trial judge's refusal to direct the jury in accordance with the decision in Carey, I agree with McClellan CJ at CL at [34] that there was a sufficient foundation in the appellant's evidence as to the circumstances in which she came to be in possession of the drugs in her purse for the jury to consider whether her possession of those drugs was as a mere custodian and, if so, to conclude that her possession was otherwise than for the purposes of supply. While I accept Simpson J's analysis of the collected authorities and her Honour's observation at [75] that, depending upon the facts in a particular case, fine distinctions may emerge between a passive custodian and a custodian who intends to become or does become part of a supply chain, I am also of the view that, in this case, whether the appellant was a mere custodian was a jury question obliging the trial judge to give the direction sought by her counsel.
The question that then arises is whether the consequence of upholding those grounds of appeal necessitates ordering a new trial. In my view it does not, there being no miscarriage of justice. The appellant faced one charge on the indictment, namely supply of not less than a large commercial quantity of the prohibited drug methylamphetamine which is specified under the Drug Misuse and Trafficking Act at 1 kg. In the way the Crown conducted its case at trial, a conviction on that charge necessitated the jury being satisfied that the appellant was in possession (for supply) of the drugs in the purse (totaling 129.3 grams) and the drugs in the back seat (totaling 973.5 grams), since it was only by the combined weight of those discrete packages that the total weight of the drugs exceeded 1 kg. The appellant was acquitted on that charge and convicted of the statutory alternative of supply of a commercial quantity of that drug, specified under the Act as 250 grams. Whether the verdict was because the jury were in doubt as to whether she knew or was aware that the combined weight of all the drugs exceeded 1 kg (the view of the trial judge and adopted by McClellan CJ at CL at [37]) or whether it was as a result of the jury accepting that the drugs in her purse were not for supply despite the absence of instruction on the basis of Carey (the preferred analysis of Simpson J), the jury must have rejected the appellant's claim that she had no knowledge of the drugs under the back seat. The trial judge's failure to direct on the Carey principle cannot affect that finding. In those circumstances there is no utility to ordering a new trial.
I agree with his Honour that leave should be refused to raise ground 3 and that ground 4 is not made out. I agree that leave to appeal is granted but that the appeal should be dismissed. I also agree with his Honour that the appeal against sentence should be dismissed.
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Case Title:	Alliston v R
Medium Neutral Citation:	[2011] NSWCCA 281
Hearing Date(s):	3 August 2011
Decision Date:	16 December 2011
Jurisdiction:
Before:	McClellan CJ at CL at [1] Simpson J at [54] Fullerton J at [152]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed
Catchwords:	CRIMINAL APPEAL - s25(2) Drug Misuse and Trafficking Act 1985 (NSW) - physical control of drugs but with the intention of returning them to the owner - Carey defence should have been left to jury - no adverse consequence for appellant - no miscarriage of justice - no lesser sentence warranted at law - appeal dismissed.
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Maginnis [1987] AC 303 Dinsdale v R (2000) 202 CLR 321 at 325 Markarian v The Queen (2005) 228 CLR 357 Muldrock v The Queen [2011] HCA 39 O'Brien v Smith unreported, NSWSC, 9 May 1986 R v Asim, unreported, NSWCCA, 3 March 1997 R v Blair [2005] NSWCCA 78 R v Carey (1990) 20 NSWLR 292 R v EAS, unreported NSWCCA, 26 July 1990 R v Fong (unreported NSWCCA, 29 November 1996 R v Frazer [2002] NSWCCA 59; 128 A Crim R 89 R v Liberti (1991) 55 A Crim R 120 R v Small (1991) 54 A Crim R 460 R v Tuckey (1991) 57 A Crim R 468 R v Way [2004] NSWCCA 131; 60 NSWLR 168
Texts Cited:
Category:	Principal judgment
Parties:	Jacinta Lee Alliston (Appellant) Crown
Representation
- Counsel:	S Kluss (Appellant) S Dowling (Crown)
- Solicitors:
File number(s):	2009/7753
Decision Under Appeal
- Court / Tribunal:
- Before:	Hock DCJ
- Date of Decision:	30 July 2010
- Citation:
- Court File Number(s)	2009/7753
Publication Restriction: