Atholwood v The Queen

[2000] WASCA 76

ATHOLWOOD -v- THE QUEEN [2000] WASCA 76

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 76
Court:	COURT OF CRIMINAL APPEAL
Case No:	CCA:88/1999	Heard:	2 DECEMBER 1999
Coram:	MALCOLM CJ WALLWORK J ANDERSON J	Delivered:	28/03/00
No of pages:	32	Judgment Part:	1 of 1
Result:	Appeal dismissed Application refused
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Parties:	DAVID JAMES ATHOLWOOD THE QUEEN
Catchwords:	Criminal law and procedure Appeal against conviction for three offences of possession with intent to sell or supply Intention to possess an element of the offence Prima facie proof of custody or control with guilty knowledge sufficient Direction to jury adequate Criminal law and procedure Admissibility of evidence of possession of other quantities of similar drugs in respect of charge of possession with intent to sell or supply Admissible to show accused had access to drugs Admissible together with other paraphernalia to show evidence of dealing and to negate innocent explanation Probative value exceeds any potential prejudice Direction to jury regarding use of propensity evidence adequate Sentencing Application for leave to appeal against sentence Application over three months out of time Six year sentence ordered to be served cumulatively on earlier sentence of two years and three months for cannabis cultivation with intent to sell or supply Earlier sentence reduced to 12 months on appeal after second sentence Subsequent sentence reduction on appeal not an exceptional circumstance in relation to second sentence Total of seven years' imprisonment not disproportionate to totality of offending
Legislation:	Misuse of Drugs Act 1986 s 3(1), s 6(1)(a) s 11 Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5
Case References:	Atholwood v R [1999] WASCA 256 Crawford v Evans, unreported; CCA SCt of WA; Library No 950320; 22 June 1995 Davis v The Queen (1990) 5 WAR 269 Director of Public Prosecutions v Brooks [1974] AC 862 Eades (1991) 57 A Crim R 151 Evans v R [1999] WASCA 252 Gavin v The Queen (1992) 6 WAR 195 Harriman v The Queen (1989) 167 CLR 590 Jarvis v The Queen (1993) 20 WAR 201 Kauhanen v R [1999] WASCA 14 Markovina v R (1996) 16 WAR 354 McLean v The Queen [1999] WASCA 209 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416 R v Cumming (1995) 86 A Crim R 156 R v Sultana (1994) 74 A Crim R 27 Williams v The Queen (1978) 140 CLR 591 Lai v The Queen [1990] WAR 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : ATHOLWOOD -v- THE QUEEN [2000] WASCA 76 CORAM : MALCOLM CJ

WALLWORK J
ANDERSON J

HEARD : 2 DECEMBER 1999 DELIVERED : 28 MARCH 2000 FILE NO/S : CCA 88 of 1999 BETWEEN : DAVID JAMES ATHOLWOOD

Appellant

AND

THE QUEEN
Respondent

FILE NO/S : CCA 172 of 1999 BETWEEN : DAVID JAMES ATHOLWOOD

Applicant

AND

THE QUEEN

Respondent

Catchwords:

Criminal law and procedure - Appeal against conviction for three offences of possession with intent to sell or supply - Intention to possess an element of the

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offence - Prima facie proof of custody or control with guilty knowledge sufficient - Direction to jury adequate

Criminal law and procedure - Admissibility of evidence of possession of other quantities of similar drugs in respect of charge of possession with intent to sell or supply - Admissible to show accused had access to drugs - Admissible together with other paraphernalia to show evidence of dealing and to negate innocent explanation - Probative value exceeds any potential prejudice - Direction to jury regarding use of propensity evidence adequate

Sentencing - Application for leave to appeal against sentence - Application over three months out of time - Six year sentence ordered to be served cumulatively on earlier sentence of two years and three months for cannabis cultivation with intent to sell or supply - Earlier sentence reduced to 12 months on appeal after second sentence - Subsequent sentence reduction on appeal not an exceptional circumstance in relation to second sentence - Total of seven years' imprisonment not disproportionate to totality of offending

Legislation:

Misuse of Drugs Act 1986 s 3(1), s 6(1)(a) s 11

Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 5

Result:

Appeal dismissed

Application refused

Representation:

CCA 88 of 1999

Counsel:

Appellant : Mr R Richter QC
Respondent : Mr R E Cock QC & Mrs J Andretich

Solicitors:

Appellant : Pryles & Defteros
Respondent : State Director of Public Prosecutions

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CCA 172 of 1999

Counsel:

Applicant : Mr R Richter QC
Respondent : Mr R E Cock QC & Ms J Andretich

Solicitors:

Applicant : Pryles & Defteros
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Atholwood v R [1999] WASCA 256
Crawford v Evans, unreported; CCA SCt of WA; Library No 950320; 22 June 1995
Davis v The Queen (1990) 5 WAR 269
Director of Public Prosecutions v Brooks [1974] AC 862
Eades (1991) 57 A Crim R 151
Evans v R [1999] WASCA 252
Gavin v The Queen (1992) 6 WAR 195
Harriman v The Queen (1989) 167 CLR 590
Jarvis v The Queen (1993) 20 WAR 201
Kauhanen v R [1999] WASCA 14
Markovina v R (1996) 16 WAR 354
McLean v The Queen [1999] WASCA 209
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 72 ALJR 1416
R v Cumming (1995) 86 A Crim R 156
R v Sultana (1994) 74 A Crim R 27
Williams v The Queen (1978) 140 CLR 591

Case(s) also cited:

Lai v The Queen [1990] WAR 151

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1 MALCOLM CJ: This was an appeal against conviction and an application for extension of time to make an application for leave to appeal against sentence.

Appeal Against Conviction

Grounds 1 and 2

2 On 29 April 1999 the appellant was convicted after trial of three offences contrary to s 6(1)(a) of the Misuse of Drugs Act 1986, namely, that on 22 August 1996 at Duncraig he had in his possession:

(1) a quantity of methylamphetamine with intent to sell or supply it to another;

(2) a quantity of amphetamine with intent to sell or supply it to another; and

(3) a quantity of methylenedioxydimethylphenylethylamine ("ecstasy") with intent to sell or supply it to another.

3 The Crown case against the appellant in respect of counts (1) and (2) on the indictment was that, when police executed a search warrant at a house occupied by the appellant at Duncraig, they found 449.28 grams, or approximately half a kilogram, of methylamphetamine, a quantity of amphetamine, being some 28.7 grams and approximately 150 ecstasy tablets, being some 36.78 grams, in an ammunition box buried under a concrete slab in a garden shed. There was also found a small quantity of methylamphetamine and a very small quantity of ecstasy in two different shirt pockets in shirts and socks belonging to the appellant in his house.

4 At a directions hearing on 26 March 1999 objection was taken on behalf of the appellant to the admissibility of the evidence of the methylamphetamine and the ecstasy tablets found in the appellant's shirts. The objection was made on the ground that it was evidence merely of propensity, in that there was no evidence that the drugs in the house came from the same source as the drugs in the shed and, further, that there was positive evidence that the ecstasy in the house came from a different source. The Crown contended that the evidence was admissible, together with other evidence that there were found in a kitchen cupboard a set of scales with a fingerprint of the appellant on them; three packets of Glucodin, a cutting agent; a packet of Epsom Salts, which could also be used as a cutting agent; and a large number of plastic bags of a kind that

(Page 5)

could be used for packaging drugs. The quantity of amphetamine was 0.18 of a gram and the ecstasy tablets were 0.34 of a gram.

5 The learned Judge ruled that the evidence of the drugs found in the appellant's shirts was admissible. Her Honour's reasons were expressed as follows:

"The circumstances, I am told, is that when police executed a search warrant they found a pound of methylamphetamine and a hundred Ecstasy tablets buried under a slab inside the shed. The drugs were in an ammunition box. It's submitted on behalf of Mr Atholwood that on analysis the ecstasy was found to be different in substance - different than the tablets found in the house. However the crown, on reading me what was said at p 324 of the depositions from the preliminary hearing - it seems that the chemist there said that he could not say that they were identical and definitely came from the same place but he certainly gave evidence of their similarity.

I understand there has been no appropriate analysis of the white powder to determine whether it is similar in its make-up to that found in the ammunition box. The applicant Atholwood relies on the decision in Harriman which is a decision of the High Court of Australia (1989) 167 CLR 590 where three of the justices of the High Court, Toohey, McHugh and Gaudron JJ, all held that evidence of a person charged with being knowingly concerned in the importation of heroin - evidence that that person was a heroin user was inadmissible on the trial of that person on the ground that it had no relevance to the charge.

The crown puts its case on a different basis. They are not alleging in this case that the accused Mr Atholwood is a user of these materials. The crown puts its case on the basis that the accused Atholwood would be shown, because of the presence of drugs in his shirt pockets, to have access to drugs of this nature. There is also evidence - I understand that there were implements found in the house that would be suitable, in the sense of scales, material suitable for cutting and plastic bags for dealing in methylamphetamines in any event.

I am also told that there will probably be evidence that the police have planted these drugs and therefore it is an important part of the crown case to show that, again, the accused

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Atholwood had access to the drugs and to the implements. After considering all of these matters, I am of the view that this evidence is admissible. I agree with Mr Dickinson that it is prejudicial evidence which, if it's not used properly by the jury, could be prejudicial and a warning will be required, but in all the circumstances it seems to me that the evidence is properly admissible on the trial of these two charges."

6 This ruling was the subject of grounds 1 and 2 of the grounds of appeal which, as amended at the hearing, were as follows:

"1. Her Honour erred in admitting into evidence the finding of small quantities of drugs in the [appellant's] clothing.

Particulars

Very small quantities of Methylamphetamine and MDMA were located in [appellant's] clothing in the course of the search conducted at his home on 22 August 1999. The [appellant] was not charged with respect to these drugs, nor were they of the same composition as the drugs that were found at the rear property which were the subject of the counts on the indictment.

2. Alternatively, having admitted into evidence the finding of a small quantity of drugs in the [appellant's] clothing, the trial miscarried as a result of her Honour's failure to direct the jury as to the manner in which they may use propensity evidence."

7 The methylamphetamine was not of the same composition as the bulk found in the shed and the ecstasy tablets found in the shirts were likewise not of the same kind as those found in the shed. They had been pressed in a different mould and the chemical composition was different. On this basis it was submitted that the small quantities were not capable of proving that the appellant had taken the drugs from the quantity which were located in the shed in order to deal with them. On that basis it was submitted that the drugs found in the clothing were no more than evidence of propensity.

8 At the time of the preliminary hearing the chemist who had analysed the drugs was unable to say "definitely" that they were from the same source but that it was a "distinct possibility". Ultimately, when the chemist gave evidence at the trial, it was demonstrated that they were

(Page 7)

different in composition. It was submitted on behalf of the appellant that possession of the small quantities of the same drugs, but of a different chemical composition, was not admissible on the issue whether or not he was in possession of the drugs in the shed or, if so, such possession was with the intent to sell or supply those drugs.

9 It was submitted on behalf of the Crown that the evidence was admissible as it tended to show that the appellant was dealing in drugs. Where the issue at a trial is whether a person found in possession of a drug possessed it for sale or supply, the fact that the person is currently engaged in the business of a drug dealer is a fact relevant to the issue. It is not mere evidence of propensity to commit crime. In such a case the prosecution is entitled to lead evidence on the finding of both the drugs which were found in the clothes and the paraphernalia to which reference was made for two purposes. First, the evidence is admissible as relevant to the prosecution case that, contrary to his denials, the appellant was caught in possession of the drugs. Secondly, the evidence is admissible to rebut any defence that the appellant had with regard to not having access to those drugs freely. If the appellant was involved in a drug business at the time of the search, then in the absence of any alternative explanation, it was reasonable to regard the drugs found in his bedroom and the paraphernalia in the kitchen as part of the business of the sale and supply of drugs: R v Sultana (1994) 74 A Crim R 27 per Gleeson CJ at 29; and per Sully J at 36 - 37, which was recently applied by this Court in Evans v R [1999] WASCA 252 at [31] per Malcolm CJ, with whom Anderson and White JJ agreed. In that case, as in this, the defence to a charge of possession of drugs was a denial of any knowledge of the presence of the drugs. The drugs were found in a car driven by the accused. Evidence tending to show that the accused was dealing in drugs was admissible to support the Crown case that the accused was in possession of the drugs and to rebut the defence that he was in possession for his own use, as was the case in Sultana (supra).

10 The evidence of the drugs found in the bedroom and the paraphernalia in the kitchen was also relevant to negativing an innocent association between the appellant and the drugs in the same way as evidence may be led to negative innocent association between one person and another or a person and a building: cf Harriman v The Queen (1989) 167 CLR 590 per Brennan J at 594 - 596; Dawson J at 597 - 603; Toohey J at 609 - 610; Gaudron J at 613; and McHugh J at 628 and 630 - 635; Markovina v R (1996) 16 WAR 354 per Malcolm CJ at 363; and Crawford v Evans, unreported; CCA SCt of WA; Library No 950320; 22 June 1995 per Malcolm CJ at 15.

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11 The Crown case was that the appellant was a drug dealer and that his possession of the drugs in the shed on 22 August 1996 was with the intention to sell or supply it to another. Alternatively, it was submitted that he was in possession of the drugs in such quantities that, under s 11(a) of the Misuse of Drugs Act, he was deemed to have the drugs with an intention to sell or supply them to another. Counsel for the appellant submitted that reliance on these two bases had the effect that, had they been made clear at the outset, this would have rendered the indictment bad for duplicity because it would contain a second uncharged crime, namely a sale or supply prior to 22 August 1996: cf Eades (1991) 57 A Crim R 151. In my opinion, where such evidence is admitted as tending to show that the accused was engaged in the business of selling or involved in dealing with drugs, it does not render an indictment bad for duplicity where that evidence is admitted to prove that a quantity of drugs in the possession of the accused was possessed by him with intent to sell or supply. The question of duplicity simply does not arise.

12 In opening the prosecution case, counsel for the Crown at the trial said:

"So, ladies and gentlemen, with the small amounts of ecstasy tablets in the accused's shirt, the small quantity of methylamphetamine substance in the socks and another small quantity of methylamphetamine in the shirt along with the scales, one set of which bore the accused's fingerprints, another set of scales, the glucodin as well as the epsom salts which you will hear from Mr Priddis is a common dry agent, and a quantity of glad wrap plastic bags.

On the Crown's case, what had been located thus far was all the indicia of what you would expect with somebody who had access to ecstasy and methylamphetamine and who had been dealing in those drugs."

13 This stated the position somewhat differently from the basis on which the matter had been argued at the directions hearing.

14 Counsel for the Crown also said the Crown's case was that the appellant had in his possession the drugs which were in the shed and continued:

"The Crown's case does not rest there, ladies and gentlemen. As I have said these drugs were measured out in quite precise weights so far as the methylamphetamine and amphetamine is

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concerned and they were packaged in plastic bags. On the Crown's case not only do you have the drugs under a slab in a back shed of premises occupied by the accused but also in the kitchen cupboard there were the cutting agents, being the glucodin and epsom salts, which are associated with the cutting and diluting and drying of prohibited drugs.

Further on the Crown's case, the accused had in the clothing that he wore similar quantities of those very same drugs, namely, methylamphetamine and MDMA and they were secreted in his shirts. On the Crown's case, the accused obviously had access to those drugs and the fact that he did so is borne out by a finding of the larger quantities in the ammunition box in the garden shed."

15 It was also indicated that the Crown would be relying upon:

"… the sheer weight of the drugs, being 150 or so ecstasy tablets concerning count 3 and half a kilogram of amphetamine and methylamphetamine concerning counts 1 and 2.

The Crown will be relying on the sheer weight of the drugs as indicating the quality of the accused's intention with respect to them as well as all the other items that I have referred you to and that I have referred to: the two sets of scales, the plastic bags, the glucodin, the epsom salts, items like that."

16 In her Honour's directions to the jury regarding this evidence the learned Judge said:

"The Crown also relies on other evidence. It points to the small quantities of methylamphetamine and the two ecstasy tablets found in pockets of the accused's shirts and in his footie socks. The Crown suggests the accused has been dealing in the drugs while keeping his large supply of drugs in the ammunition tin hidden in the back shed.

The defence, of course, reminds you that the two ecstasy tablets found in the accused's shirt pocket were found to be different in size and different in substance to a slight degree from the 160-odd tablets found in the shed. The defence also draws to your attention that the amphetamines are of a different strength - the ones in the shed [sic are] of a different strength than the small quantities found in his clothing.

(Page 10)

The defence's position is that all those small quantities of drugs in the accused's clothing were left-overs from occasions when he visited nightclubs in Northbridge and he had merely been using those drugs. The accused has denied ever dealing in drugs. The Crown also relies on the property itself and the fact that the accused had the only keys to the front door and the roller door and suggest that the evidence shows that no-one could have access to the back area of the shed without going through the house and the garage unless he jumped the fence."

17 The evidence of Mr Holmes, the owner of the house, was that when the property was let to the appellant he was given the "main key", plus two controllers for the dual roller doors to the garage. Mr Holmes had a spare front door key and he gave one front door key to the appellant. There was no other access to the premises.

18 In my opinion, evidence tending to show that an accused is or has been dealing in drugs is relevant and admissible on the issue of his intention to sell or supply a quantity of drugs found in his possession. In this context, the evidence falls into a category where its probative value on the issue of intent outweighs any prejudicial effect. Section 11 of the Misuse of Drugs Act provides that:

"A person shall unless the contrary is proved be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in the schedule in relation to the prohibited drug."

19 The quantity specified in the schedule in relation to methylamphetamine, amphetamine and ecstasy is two grams in each case. As her Honour directed the jury in relation to this point, that meant that:

"… anybody found in possession of two grams or more of any of these drugs is deemed, unless the contrary is proved, to intend to sell or supply them. You can appreciate that each quantity of drugs is substantially more than two grams and with the methylamphetamine, ladies and gentlemen, it's 220 times more than the quantity specified in the schedule and I think that's why Mr Mactaggart refers to it as a really huge quantity of the drug.

The effect at law is this, ladies and gentlemen: in count 1, if you're satisfied the accused had in his possession nearly half a

(Page 11)

kilogram of methylamphetamine, 449.28 grams, then that is proof beyond reasonable doubt of the accused's intent to sell or supply the drug to another unless you conclude upon the whole of the evidence that it is more probable than not that the accused did not have that intention."

20 The real issue in relation to count 1 was whether the appellant had the drugs in his possession. Again, in relation to count 2, if the jury were satisfied beyond reasonable doubt that the accused had in his possession 28.7 grams of amphetamines, that constituted proof beyond reasonable doubt of his intention to sell or supply those amphetamines to another, unless the jury were able to conclude upon the whole of the evidence that it was more probable than not that the accused did not have the intention. The position was the same with respect to the ecstasy tablets, the subject of count 3.

21 Her Honour went on to say:

"When you consider the whole of the evidence, you also may wish to consider the items found in the kitchen pantry if you accept the police evidence that those items were found there. You would consider the two sets of scales and the glucodin and the epsom salts and the plastic snap-lock bags and the medical gloves. Are these indicia of a drug dealer? Are those the kinds of things you would expect to find if a person was dealing in drugs."

22 For these reasons I consider that ground 1 fails.

23 It was submitted in support of ground 2 that, having admitted the evidence, the learned Judge ought to have strictly cautioned the jury against using it in the manner ultimately put by the Crown. It is apparent from the passage in her Honour's reasons for overruling the objection to the admissibility of the evidence on 26 March 1999 that her Honour appreciated that it was prejudicial evidence when she said:

"After considering all of these matters, I am of the view that this evidence is admissible. I agree with Mr Dickinson that it is prejudicial evidence which, if it's not used properly by the jury, could be prejudicial and a warning will be required, …"

24 The appellant gave evidence that the drugs found among his clothing were remnants of quantities that he had used for his own purposes and that he had self-administered. They had been given to him at various parties

(Page 12)

and by friends, so that the evidence of those drugs was not capable of proving an intent to deal, or to sell or supply the quantities of drugs which were contained in the ammunition box in the shed.

25 In my opinion, it was not necessary to show that the drugs or traces of drugs which the appellant had in his possession among his clothing were of the same composition or manufactured in the same way as those found in the shed. The probative value of the evidence was that, taken together with the paraphernalia found in the kitchen, it tended to show that he was a person who dealt in drugs. In the context, that evidence was relevant and admissible on the issue of his intention so far as the drugs found in the shed were concerned, assuming he was found in possession of them.

26 In my opinion, the evidence now said to have been wrongly admitted and which should have been the subject of a caution or warning against its misuse was such that its probative value greatly exceeded its prejudicial effect as evidence of mere propensity. In these circumstances, I am unable to accept the submission that the Judge ought to have strictly cautioned the jury against using it in the manner ultimately suggested by the Crown. Assuming the caution or warning was necessary, I do not consider that its absence in this case has led to a miscarriage of justice. There were a number of features of the case which demonstrate why the jury found against the version of events the subject of evidence by the appellant. First, the appellant admitted he had lied in previous statements to the Coroner in order to protect himself. Secondly, he was evasive in answering questions which were put to him when he gave evidence at the trial. Thirdly, he admitted he had lied to his landlord about the purpose for which he leased the premises and admitted that the premises were leased to grow marijuana for his and others' financial benefit. Fourthly, he admitted that cannabis was prepared on the premises for sale with his knowledge and that he had tended the crop. Finally, police witnesses testified that the appellant "went pale", was shaking, was reluctant to acknowledge the discovery of the ammunition tin and its contents and denied that it was his or that he knew anything about it.

27 The defence case was that many other people went to the house, including at least one person who was a specific police target. It was suggested that the fact that the colour drained from the accused's face and he shook was consistent with him not knowing that the drugs were there and being quite startled to learn about them for the first time. As her Honour summarised the further matters put by the defence:

(Page 13)

"Mr Dunn suggests that someone who lives in a house with a cannabis crop growing would be a person with no money, a person who you might think would be the perfect patsy. He suggests absence of any money is inconsistent with the accused being a drug dealer and submits he is clearly not a dealer, he has no money and no real assets. He submits that just because you live in a house does not mean you are responsible for what is in the shed. He submits the accused was the housesitter and a cannabis grower, but knew nothing about what was in the shed. He submits the mere fact he lived in the house was not sufficient to establish knowledge on his part, and submits there is no evidence of when the drugs were put there, how long they had been here [sic there] or who put them there.

The defence submits that the methylamphetamine in the shirt pocket was a different strength from the methylamphetamine in the ammunition box and submits that the ecstasy tablets in his shirt pocket were a different size and content than the ecstasy tablets in the ammunition box, and said that is inconsistent with the accused dealing in the drugs that were in the ammunition tin. The defence submits that the fact drugs are hidden does not prove that he knew they were there and suggests that you should accept the accused's evidence that the electronic scales were used to weigh cannabis and the snap-lock bags to package the cannabis, submits that you should accept the accused's evidence that he did not know there were drugs hidden in the shed.

The Crown on the other hand renews its submission that it is inconceivable that the accused did not either place the drugs there or know that the drugs were there. The Crown asks you to consider how the drugs could have got there and looks at the history of those who were at the property. It submits the evidence the accused starting shaking and turning white when taken to the shed is evidence you can rely on because he knew the drugs which were carefully hidden in the shed had been found.

It submits that the accused had barely enough income on his own admission to pay rent, yet there is evidence he paid in cash every month during the period he rented the house; a rental that would amount to some $9,000 per year suggests he must have been dealing in drugs, as he had no occupation, in order to have that amount of money to pay the rent.

(Page 14)

The Crown submits that the garden shed was not visible from the street and had to be accessed through the front door or roller doors and whoever did it would have to have - the accused on his own admission went into the shed and in doing so it is submitted he would have had to have walked over the loose slab and that would have drawn his attention to the fact of that and he must have known it was there. The Crown also asks you to think about how a person could have gone in the shed, lifted the slab, opened the tin, all those noisy operations, without the accused, who must have let them in, knowing about it. The Crown relies on the fact that the accused was the only occupant of the house and held the only keys. The Crown relies on the electronic scales, balance scales, plastic gloves, glucodin, epsom salts and plastic snap bags as evidence that he was involved in dealing in drugs, and relies on the fact that the accused's fingerprint is on the electronic scales.

The Crown relies on the drugs found in his clothes and socks and suggests that he had been dealing in drugs and that is evidence of it. It submits that the accused either put the drugs there or knew that they were there and was dealing in them …"

28 There was only one objection by counsel for the appellant to the summing up, namely, that the learned Judge put to the jury that the rental was $9,000 per year coupled with the suggestion that such rental had been paid. The appellant had in fact only occupied the premises for six months. This point was clarified for the benefit of the jury. The rent for the house was, in fact, paid in cash at the rate of $823.33 per month for six months.

29 In my opinion, grounds 1 and 2 have not been made out.

Grounds 3 and 4

30 Grounds 3 and 4 were as follows:

"3. Her Honour misdirected the jury as to the meaning of possession.

Particulars

Her Honour directed the jury that possession for the purposes of Section 6(1)(a) of the Misuse of Drugs Act would be established if the [appellant], with knowledge

(Page 15)

of the nature of the substance, permitted a third party to store the drugs at the [appellant's] premises.

4. The trial miscarried as a result of the failure of her Honour to direct the jury with respect to aiding and abetting another's possession, particularly in so far as it concerned the issue of intent to sell or supply.

Particulars

On the evidence it was open to find that the [appellant] permitted a third party to store the drugs in the garden shed. In these circumstances it was essential that her Honour direct the jury as to the meaning of aiding and abetting particularly as it related to the issue of intent to sell or supply for the purpose of Section 6(1)(a) of the Misuse of Drugs Act."

31 Section 3(1) of the Misuse of Drugs Act 1981 provides that in the Act, unless the contrary intention appears:

" 'to possess includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings."

32 The defence case at the trial was that the appellant had no knowledge that the drugs in the garden were there. He said that he was merely a "house sitter". It follows that the Crown had the burden of proof of knowledge on the part of the appellant beyond a reasonable doubt. The learned Judge correctly directed the jury that in respect of each of the three counts there were three elements about which the jury had to be satisfied beyond a reasonable doubt. The first was that they had to be satisfied that the appellant had the substance in his possession. Secondly, they had to be satisfied that the substance was the prohibited drug. Thirdly, they had to be satisfied that he had the prohibited drug in his possession with intent to sell or supply it to another. Her Honour then dealt with the issue of possession as follows:

"At law the concept of possession has two aspects. One is physical and the other is mental. You must be satisfied the accused had physical custody or control or dominion over the drugs and you must be satisfied that he knew that he had the drugs before you could find he was in possession. It's not necessary that he know the precise variety or quantity of the

(Page 16)

prohibited drugs but he must know that he had possession of a prohibited drug or had custody or control or dominion over a prohibited drug.

Now possession is a conception which is itself much more extensive than that of simple physical custody. It's wide enough to include a case where the person alleged to be in possession has hidden the thing, effectively, so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident.

What is involved in that is that before a person can be found to be in possession of a hidden thing, it must be found that he had hidden it or that he was in some way a party to its hiding and that he had hidden it or been a party to its hiding so that he could take it into his physical custody when he wished to do so."

33 Her Honour also said:

"Having physical custody, control or dominion over something does not mean that you have to have the thing with you. Some of you may have driven your motor vehicles into the city today and I hope you got here before the traffic was as bad as it sometimes is. You may have parked your car in a parking lot. You certainly didn't bring it into court but you still have possession of your motor vehicle. You're keeping it in the parking lot. You have the keys in your pocket. You will recover it when you need it to drive you home. You're still in possession of it even though you're keeping it somewhere else. So, if you had a parcel of drugs and decided to keep the drugs in a place where you hoped no-one would find them, you would still have those drugs in your possession or control. You're simply keeping them somewhere for safe-keeping.

Ladies and gentlemen, in considering this case with respect to each quantity of drugs, the Crown must satisfy you that on 22 August 1996 the accused had physical custody or control of the drugs and that he knew he had the drugs."

34 It was conceded by counsel for the appellant that the immediately following passage was correct, namely:

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"A person may possess drugs if he keeps them hidden in an ammunition tin buried in his back shed but only if he was involved in some way so that he knew the drugs were there and was keeping them so that he could access them."

35 It was submitted that if this had stood on its own and had been divided into elements, that would have been a proper direction. It was submitted that the elements of possession, however, were never properly defined in the sense of custody and control, plus the intention to exercise custody and control. This was said to be because the word "could" only reflected an ability to exercise control and dominion rather than an intention to do so. It was contended that this was an error because the elements of possession are control in fact and an intention to control. It was also said that knowledge may lead to an inference of intention to control, but mere knowledge is not the relevant element on its own. In my opinion, however, the reference to him being involved in hiding the drugs by the use of the words "keeping them hidden", being "involved in some way" in the hiding of the drugs and "keeping them so that he could access them" sufficiently described the necessary physical and mental elements involved in possession. In their context the words "so that" conveyed the need for a mental element in terms of an intention or purpose of exercising control or dominion over them.

36 The jury clearly had some difficulty with the issue of possession as, not long after they had been asked to retire, they returned with the following question:

"Clarification of possession: is it physical custody and mental knowledge of illicit drugs or physical custody or mental knowledge of illicit drugs?"

37 The learned Judge responded with the following redirection:

"First of all, I told you of the meaning of 'possess' in the Misuse of Drugs Act. To possess includes to control or to have dominion over and to have the order of or disposition of a thing. At law the concept of possession includes two parts, one physical and the other mental. You must be satisfied the accused had custody or control or dominion over the drugs and you must be satisfied that he knew he had the drugs. He need not know the precise variety or quantity of the prohibited drugs, but he must know that he had prohibited drugs.

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Possession is the conception which is itself - sorry. Possession is the conception which is itself much more extensive than that of physical custody. It is wide enough to include any case where the person alleged to be in possession has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident. What is involved in that is that before a person can be found to be in possession of the hidden thing, it must be found that he had hidden it or that he was in some way a party to its hiding and that he had hidden it or been a party to it so that he could take it into his physical custody when he wished to do so.

Thus, the knowledge that the accused must have is guilty knowledge, knowledge of the drugs being hidden there so that he can recover them when he wishes to do so."

38 Her Honour went on to give some examples, including the example of parking a car in a parking lot. Her Honour went on to say:

"It's the same if you have a parcel of drugs and you decide to keep them in a place where you hope no-one would find them. You still have those drugs in your possession as a matter of law so long as you're keeping them someplace and you know you have them there - keeping them in a place for safekeeping."

39 Her Honour also distinguished ownership and explained that possession was not exclusive. In this context, her Honour said:

"More than one person could have possession of the same drugs at the same time. That would happen if, for example, a person who had drugs kept those drugs at another person's house with the permission of the home owner. Each of those persons would then have the physical custody or control of the drugs and each would know that he or she had the drugs so that it would be both physical and mental elements. Each would then be in possession of the drugs.

In summary, you cannot be satisfied the accused was in possession of any of these drugs unless you are satisfied that he had both physical custody, control or dominion over the drugs, and that he had guilty knowledge, that is, he knew they were prohibited drugs and he knew he had them there in the shed."

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40 Senior counsel for the appellant submitted that the use of the word "can" and the statement that if he had hidden the drugs or had been a party to hiding them, "so that" he could take them into his physical custody when he wished, was a misdirection. The contention was that this gave rise to the possibility that the appellant was wrongly convicted because the mere possibility that he could access the drugs at some stage could have been regarded as sufficient evidence of an intention to exercise control and dominion over the drugs. Again, in my opinion, given the full context, there was no misdirection. The word "can" was used in the context of a direction that possession was a concept "…much more extensive than that of physical custody". Her Honour then said:

"It is wide enough to, include any case where the person alleged to be in possession has hidden the thing so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident."

41 In my view, the phrase "so that he can" connotes and would have been understood as "with the intention of" or "for the purpose of" taking the thing into his physical custody when he wished to do so. The same may be said of the use of the expression "so that" in the penultimate paragraph in the passage:

"…before a person can be found in possession of the hidden thing, it must be found that he had hidden it or that he had in some way been a party to its hiding and that he had hidden it or been a party to its hiding so that he could take it into his physical custody when he wished to do so." (my italics).

42 The same may also be said of the expression "so that" where it appears in the next paragraph:

"Thus, the knowledge that the accused must have is guilty knowledge, knowledge of the drugs being hidden there so that he can recover them when he wishes to do so." (my italics).

43 It is in this context that the examples fall to be considered together with the comments about possession when "you have a parcel of drugs and you decide to keep them in a place where you hope no-one would find them", coupled with knowing that "you have them there - keeping them in a place for safe keeping." The necessary inference is that there was a need for a continuing intention to exercise control or dominion over the drugs.
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44 As Wallace and Nicholson JJ said in Lai v The Queen (1990) WAR 151 at 155:

"Section 3 of the Misuse of Drugs Act defines the term 'to possess' as including to control or have dominion over and to have the order of disposition of.

It is now well settled that such possession requires either actual physical custody or alternatively, de facto custody in the sense that the accused person may be said to exercise control and dominion over the article in question. That, of course, may follow if it could be established beyond reasonable doubt that the accused person knew of the package in question in the ceiling over the toilet in his restaurant because it was his restaurant. However, as was decided in R v Solway [1984] 2 Qd R 75, before a person can be said to be in possession of a prohibited plant or a dangerous drug it may be necessary to show that he not only knew of its existence but laid some claim to it or exercised some control over it: see also Gibbs CJ in He Kaw Te v The Queen(1985) 157 CLR 523 at 538."

45 The meaning so given to the term "possession" is, prima facie, consistent with the ordinary meaning of possession. In Director of Public Prosecutions v Brooks [1974] AC 862 at 866, Lord Diplock said:

"In the ordinary use of the word 'possession,' one has in one's possession whatever is, to one's knowledge, physically in one's custody or under one's physical control."

46 In my opinion, both the direction and the redirection sufficiently reflected the ordinary meaning. In Davis v The Queen (1990) 5 WAR 269 at 273 I said:

"The expression in s 6(1)(a) of the Misuse of Drugs Act is 'has in his possession'. In Director of Public Prosecutions v Brooks the Privy Council was called upon to consider a virtually identical expression. It was there held that 'possession' required that an accused be shown to have had knowledge that he had the thing in question and that it was the prohibited drug specified in the relevant provision. This was the mental element. The only actus reus was that the thing was physically in the custody or under the control of the accused. For Australia, the requirement of knowledge to establish possession for the purposes of s 233B(1)(c) of the Customs Act 1901 (Cth) was determined by

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the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523 in which the High Court also considered the expression 'has in his possession'. In that case (at 537) Gibbs CJ cited with approval Lord Diplock's definition of possession and expressions to similar effect in R v Boyeson [1982] AC 768 at 772 - 774, per Lord Scarman; Williams v The Queen (1978) 140 CLR 591 at 610 per Aickin J and Warner v Metropolitan Police Commissioner [1969] 2 AC 256 at 282, 307 - 308, 310 - 311. In Moors v Burke (1919) 26 CLR 265 at 274 it was held that 'actual possession' meant 'the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused'. As Gibbs CJ pointed out in He Kaw Teh (at 538 - 539), this statement did not mean and Moors v Burke did not suggest that knowledge was not a necessary element. In that case the accused had full knowledge, but he had placed the wool in a locker which was not under his control. In Moors v Burke at 270 Isaacs, Gavan Duffy and Rich JJ took the view that a person was in physical possession of a thing if, so far as other persons were concerned:

'… the thing is under the protection of his personal presence, or in or on a house or land occupied by him, or in some receptacle belonging to him and under his control … The receptacle belonging to him and under his control implies that it belongs to no-one else and is subject to no other person's independent control …' "

47 In He Kaw Teh at 537 Gibbs CJ said that the words "has in his possession":

"… in their ordinary sense connote some awareness of the existence of the thing that was in the possessor's physical control."

48 The authorities referred to by Gibbs CJ at 537 included Williams v The Queen (1978) 140 CLR 591 in which Aickin J said at 610:

"It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element,

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but that is because the inference of knowledge may often be properly drawn from surrounding circumstances."

49 In commenting on this passage in Davis, I said at 279:

"This suggests that proof that a person has possession voluntarily and intentionally is, prima facie, established by proof of knowledge. Brennan J accepted (at 585-586) that for the purposes of s 233B(1)(c) the actus reus of possession required that the narcotic goods should be physically in the custody or under the control of the accused. As to mens rea his Honour held that what was required was knowledge that the object possessed was or was likely to be narcotic goods …"

50 This and other passages led me to conclude that:

"In other words possession involves an intention to possess. Normally this will be satisfied by proof of custody or control with knowledge. The knowledge must be guilty knowledge."

51 In He Kaw Teh at 599 Dawson J regarded knowledge as a source of "proof" of intent in relation to possession. His Honour described "possession" for the purposes of the criminal law as "… involving the intentional exercise of physical custody or control over something".

52 As I said in Davis v The Queen at 276:

"In such a case, however, there must be an intention to possess. Proof of knowledge will normally be sufficient to show intention, but the circumstances may be such that the original custody or control was independent of the will of the accused and that once knowledge was acquired the accused intended only to hand over the drugs to the police or destroy them."

This was not a case of that kind.

53 In Davis, after an analysis of the decision in He Kaw Teh, I said at 280 - 281 that:

"In my view, having regard to the differences between the Misuse of Drugs Act and the Customs Act, it is necessary for 'possession' in the case of the former to incorporate the wider view of knowledge in terms of guilty knowledge as proof of an intention to possess. Thus, custody and control with knowledge in Christie [R v Christie (1978) 41 CCC (2d) 282] and in the

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examples given by Bray CJ in Boyce [R v Boyce (1976) 15 SASR 40] are examples of 'innocent possessors', i.e. those who have custody or control and knowledge, but who do not intend to possess. Persons who innocently receive a parcel and on discovering that it contains drugs take steps to deliver them to the police would fall into the same category as would persons whose custody was involuntary or by accident. Indeed by s 36 of the Criminal Code all of the provisions of Ch V of the Code, which relieve from criminal responsibility are applicable to persons charged with offences under the Misuse of Drugs Act."

54 In Eades (supra) it was common ground that the statutory definition of "possession" in s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) meant possession at common law. As Marks and Phillips JJ said at 157:

"It was submitted on behalf of the applicant and conceded by counsel for the respondent that in s 5 'possession' meant possession at common law and in that context that involved knowledge of two things: that the substance found by the police was on the premises (ie the existence of the thing found) and that what was found was a drug of dependence (ie the nature of the thing found): Maio [1989] VR 281 at 287; (1988) 38 A Crim R 25 at 30-31; Clarke and Johnstone [ [1986] VR 643 ] at 648-649; [ (1986) 21 A Crim R 135 ] at 140-141; He Kaw Te (1985) 157 CLR 523; 15 A Crim R 203; Williams (1978) 140 CLR 591 at 612 and DPP v Brooks [1974] AC 862; (1974) 59 Cr App R 185. It was submitted that the learned Judge failed to draw the jury's attention to the two aspects of the knowledge involved."

55 In my opinion, the learned Judge did not misdirect the jury regarding the elements of possession. For possession to be established there needs to be proof of an intent to possess or to exercise control over the drugs in question. Proof of knowledge will normally be sufficient to show an intention to control. Ultimately, possession is a question of fact and intention to control is to be inferred from the circumstances: Davis v The Queen, above, at 276 per Malcolm CJ; and R v Cumming (1995) 86 A Crim R 156 at 163. This is what was meant by "guilty knowledge" in the present context. In other words, the evidence supported the conclusion that the appellant intended to exercise control of the drugs in the ammunition box. From that conclusion, it followed from the quantities involved that he was in possession of them with the intention to

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sell or supply them to others. He was the occupier of the premises. Drugs were found on the premises. There was no evidence to suggest that the drugs in the ammunition box had been there before the appellant took possession of the premises. He admitted that he lied to the landlord about the reasons he leased the property. Access to the shed at the rear of the premises was only by the front door of the house, for which he had the only key. The only other access was through roller doors which could only be opened from the inside by somebody who had access to the house or by means of a garage door controller. There was no evidence to support the appellant's assertion that someone else occasionally stayed at the premises. There was evidence on which it was open to the jury to find that the appellant was in possession of the paraphernalia in the pantry, which suggested that he dealt in drugs. The appellant had some drugs in his possession which were at least similar in composition to the drugs the subject of the indictment. In my opinion, the evidence was such that it was open to the jury to be satisfied beyond reasonable doubt that the appellant knew that the drugs were hidden in the shed because he had been involved in hiding them there. It was also open to them to be further satisfied beyond reasonable doubt that the drugs were hidden with the intention that (ie "so that") they would be in safekeeping until they were required for sale or supply to other persons.

56 The appellant gave evidence that he had been approached by one Darren Hedgcock, who had offered to pay the rent and his bills to look after the place. The purpose was to enable Mr Hedgcock to grow a crop of marijuana. Cannabis was, in fact, grown in the shed hydroponically. The appellant said that Mr Hedgcock showed him how to look after the cannabis crop. He said that Mr Hedgcock came to the house and stayed once a month, sometimes twice a month, for two or three days. He said that when Hedgcock was there he had a set of keys to the house in addition to the keys which the appellant had A number of other people also came to the house from time to time, including a Mr Rippingdale and a Mr Christian. The appellant was not specifically challenged in cross-examination on his evidence that Mr Hedgcock had his own set of keys, despite the fact that Mr Holmes said he only gave the appellant one key to the front door. The following appears in the cross-examination

" … how many keys were there to that house?---What do you mean? To the front door?

I mean precisely that. How many sets of keys were there to that house?---The front door, the garage or what?

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The front door and the garage?---There was two, I think.

Who had access to those keys?---Me and Darren."

57 Access to the house and shed was through the front door, or by means of the roller doors which required a controller to be opened. When re-examined the appellant said that he did not know for sure who put the drugs at the back of the house and in the shed. The jury were invited by the prosecution to disbelieve the appellant's evidence. All these matters were before the jury. In particular, it was a question for the jury whether they accepted the appellant's evidence that Mr Hedgcock also had a set of keys for the house. By reason of their verdict, the jury must have disbelieved much of the evidence given by the appellant.

58 The quantity of the drugs found in the ammunition box in each case exceeded the amount required to deem that, unless the contrary was proved, possession was for the purposes of sale or supply under s 11 of the Misuse of Drugs Act: cf Krakouer v The Queen (1998) 70 ALJR 1229 per Gaudron, Gummow, Kirby and Hayne JJ at [16].

59 While by no means decisive, it is significant that counsel for the appellant at the trial did not object to the directions given by the learned trial Judge regarding possession either when the jury were originally directed or when they were re-directed. For these reasons ground 3 fails.

60 As to ground 4, there was no specific argument directed in support of it by counsel for the appellant. There was no suggestion at the trial that her Honour should direct the jury with respect to aiding and abetting the possession of another. The appellant simply denied any knowledge of the presence of the relevant drugs in the garden shed. The issue of aiding and abetting was not raised or mentioned by anyone in the course of the trial. In my opinion, there was no foundation in the evidence giving rise to an issue of aiding and abetting the possession of another. There is no point of substance in ground 4.

61 It follows that the appeal against conviction should be dismissed.

Application for extension of time to apply for leave to appeal against sentence

62 The learned Judge sentenced the applicant to imprisonment for six years in respect of the possession of the methylamphetamine the subject of count (1); two years for the possession of the ecstasy the subject of count (2); and three years for possession of the MDMA the subject of

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count (3). For "reasons of totality" her Honour ordered that all of the sentences be served concurrently, but be cumulative upon the sentence she had imposed in relation to an offence of possession of cannabis the subject of a separate trial. These sentences were imposed on 29 April 1999.

63 By an application dated 30 August 1999 the applicant applied for leave to appeal against sentence on the following ground:

"That the Learned Sentencing Judge erred in law, or alternatively in the exercise of her discretion, by failing to properly apply the principle of totality in imposing a term of 6 years imprisonment with respect to this offence and ordering that it be served cumulatively upon the term of 2 years and 9 months imprisonment imposed earlier upon the Applicant.

Particulars

1.1 On 20 April 1999, The Learned Sentencing Judge imposed a term of 2 years and 9 months imprisonment on the Applicant with respect to a charge of cultivating cannabis with intent to sell or supply to another.

1.2 Both the charge of cultivating cannabis with intent to sell or supply to another and that of possession of methylamphetamine with intent to sell or supply to another arose out of the same police operation and were committed on the same day, namely 22 August 1996."

64 It follows that the application for leave was three months out of time. By a further notice dated 30 August 1999 application was made for an extension of time on the following grounds:

"1. That since sentence was imposed upon the Applicant on 29 April 1999 in relation to the offence of possession of a prohibited drug, namely methylamphetamine, with intent to sell or supply to another, supervening events have arisen giving rise to the need for this Honourable Court to intervene and re-sentence the Applicant.

Particulars

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1.1 On 22 August 1996 the Applicant was arrested and charged with a number of drug related offences.

1.2 On 20 April 1999 the Applicant pleaded guilty to the offence of cultivating cannabis with intent to sell or supply to another alleged to have been committed on 22 August 1996. He was sentenced by Her Honour Yeats J to a term of 2 years and 9 months imprisonment. An application for leave to appeal against sentence was lodged.

1.3 On 29 April 1999 the Applicant was found guilty of possession of methylamphetamine with intent to sell or supply to another. The offence was alleged to have occurred on 22 August 1996 and arose out of the same police operation and arrest as the offence referred to in 1.2 above. Her Honour Yeats J sentenced the Applicant to 6 years imprisonment, cumulative upon the term of 2 years and 9 months that Her Honour had earlier imposed upon the Applicant. The Applicant filed and served a Notice of Appeal against sentence.

1.4 On 21 July 1999 the Applicant's application for leave to appeal against the sentence of 2 years and 9 months imprisonment was upheld. As a consequence, the Court of Criminal Appeal reduced the sentence to 12 months imprisonment.

1.5 By reason of the supervening appeal against sentence heard and successfully determined in favour of the Applicant on 21 July 1999, the Applicant seeks leave to apply out of time to the Court of Criminal [sic Appeal] for leave to appeal against the sentence of 6 years imprisonment imposed in relation to the offence of possession of methylamphetamine with intent to sell or supply to another."

65 It was submitted that the learned Judge erred in the exercise of her discretion by ordering that the sentences imposed in relation to the three offences of possession with intent to sell or supply be served cumulatively

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upon the sentence of two years and nine months her Honour had imposed in respect of an offence that on 22 August 1996 (the same day as the three offences in the present case were said to have been committed). The appellant and another had cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another. In Atholwood v R [1999] WASCA 256, in a decision delivered on 21 July 1999, the reasons for which were published on 15 November 1999, this Court (Malcolm CJ, Ipp and Wallwork JJ) granted the applicant leave to appeal and set aside the sentence of two years and nine months which had been imposed on 20 April 1999. A sentence of imprisonment for 12 months was substituted.

66 It follows that the application for leave to appeal against sentence in the present case was made some 37 days after the decision of the Court of Criminal Appeal in relation to the sentence imposed for the cultivation of cannabis. It was then more than three months out of time, given that the notice of application for leave to appeal against the conviction was filed on 13 May 1999. As a result, this application is one which falls into the category of lengthy delay. In such a case, the Court requires exceptional circumstances to be established before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted. An extension will only be granted upon established facts which, in the judgment of the Court, appear positively to justify the extension: Gavin v The Queen (1992) 6 WAR 195 at 198 per Malcolm CJ; at 201 - 203 per Seaman J; and at 219 per Wallwork J.

67 In my opinion, the fact that the applicant successfully appealed against the sentence of two years and nine months' imprisonment received for the cultivation of cannabis offence with the result that the sentence was reduced to one of 12 months, does not evidence a miscarriage of justice. On the contrary, the reduction of the sentence for the cannabis offence from a sentence of two years and nine months to a sentence of 12 months is a circumstance that operates against the existence of any miscarriage of justice. Further, it does not provide an adequate explanation for the delay.

68 In support of the submission that the sentences imposed ought to have been ordered to be served concurrently with the sentence imposed on 20 April 1999 had to be viewed in the light of the subsequent reduction of that sentence from two years and nine months to a sentence of 12 months. It was submitted that there was no reason to order that the sentences imposed in the present case should be cumulative upon the sentence of 12 months because:

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(a) the offences were committed at the same time and place; and

(b) other than for the nature of the drugs involved, there was in reality one episode of possession of a variety of drugs in circumstances where the applicant's role was essentially the same.

69 It needs to be borne in mind that on 20 April 1999 the applicant pleaded guilty to the offence of cultivating cannabis with intent to sell or supply to another. It was in the context of that plea that it was accepted by the Crown that the applicant was essentially a "housesitter" or "minder" who occupied the house and was involved in the cultivation of the cannabis crop.

70 So far as the cultivation of the cannabis was concerned, there was an acceptance by the prosecution of the facts. The primary reason for the Court interfering with the sentence imposed for the cannabis cultivation was that her Honour sentenced the appellant on the basis that his involvement in the criminal enterprise was greater than merely looking after the house and participating in the cultivation of the crop to the extent stated by counsel for the appellant and which the Crown had accepted. As Ipp J put it in Atholwood at par [7] of his reasons (with which Malcolm CJ and Wallwork J agreed):

"The inference to be drawn is that her Honour considered that the appellant stood to gain financially from the cultivation of the cannabis plants to a significant extent. However, in the light of the acceptance by the prosecution of the facts stated by counsel for the appellant, this view of the facts was not open to her Honour. Accordingly, in my view, the criminality of the appellant was significantly less than that assumed by the learned Judge."

71 The sentence originally imposed for the cultivation was also reduced because the Court was of the opinion that, in the circumstances, a greater discount should have been allowed for the plea of guilty: see per Ipp J at [8] - [12]. While her Honour was bound by the acceptance by the Crown of the role of the applicant for the purposes of sentencing in relation to the cultivation of the cannabis, she did not remain so bound when sentencing for the present offences. In the latter case, she was entitled to make findings of fact which were consistent with the verdicts of guilty returned by the jury in the light of the evidence which had been given at the trial.

72 It was submitted that the learned Judge misconstrued the totality principle, which in this case would have required her to fix an appropriate

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sentence for the offences on the indictment and then order concurrencies with the earlier sentence. I am unable to accept that submission.

73 The totality principle requires the sentencing Judge to review the totality of the sentences imposed and consider whether the aggregate is "just and appropriate" to the degree of criminality involved: Mill v The Queen (1988) 166 CLR 59 per Wilson, Deane, Dawson, Toohey and Gaudron JJ at 62 - 63. In Pearce v The Queen [1998] HCA 57 at [45]; (1998) 72 ALJR 1416 at 1423-1424 McHugh, Hayne and Callinan JJ said:

"To an offender, the only relevant question may be 'how long' and that may suggest that a sentencing Judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

Their Honours also said at HCA [49]; ALJR 1424 [49]:

"Looked at overall, it may well be said that the effect of the sentences imposed on this appellant is not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. The appeal under s5(1) of the Criminal Appeal Act 1912 (NSW) being an appeal against 'a sentence' it was, of course, the individual sentences that fell for consideration, not just their overall effect. If the Court 'is of opinion that some other sentence ... is warranted in law and should have been passed, [it] shall quash the sentence and pass such other sentence in substitution therefor'."

74 As I said in my judgment in Kauhanen v R [1999] WASCA 14 at [37]:

"The position is the same under s689 of the Criminal Code. It was acknowledged, however, that upon the application of the totality principle and in order to avoid a crushing sentence,

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individual sentences may be reduced if, even by making appropriate sentences concurrent, the combination of cumulative and concurrent sentences in accordance with ordinary principles would result in a crushing sentence: cfMill v The Queen (1988) 166 CLR 59 at 63 per Wilson, Deane, Dawson, Toohey and Gaudron JJ; and Postiglione v The Queen (1997) 189 CLR 295 at 307-308 per McHugh J; and at 340 per Kirby J."

75 The present offences were quite separate and distinct offences from the cultivation of cannabis. The question is whether, in the result, the fact that the sentences imposed on the three additional offences on 29 April 1999 by being made cumulative upon the adjusted sentence of 12 months for the cultivation of cannabis, offended the totality principle. In such a case the relevant question is whether, looking at the totality of the criminal behaviour, a total sentence of seven years offended the totality principle: Jarvis v The Queen (1993) 20 WAR 201 per Ipp J at 6 - 7; and per Murray J at 6 - 7; and McLean v The Queen [1999] WASCA 209 at [19] and [28] per Ipp J (with whom Wallwork and Parker JJ agreed).

76 In my opinion, the learned Judge correctly applied the totality principle both in relation to the three offences for which she had to sentence the applicant after trial and when looking at those sentences in combination with the sentence which she had imposed for the cultivation of the cannabis. I am unable to perceive any error on the part of the learned Judge by ordering that the sentences for the three offences of possession with intent had been made concurrent with the sentence for cultivation by reason of the totality principle. On the contrary, in my opinion, it was appropriate to direct that the sentences be cumulative, the error in the exercise of discretion being that which was identified by this Court in the earlier appeal.

77 It was also submitted that in forming a view as to the appropriate total sentence to be served in respect of the offences the subject of the two indictments, the learned Judge impermissibly punished the applicant for a crime with which he was not charged, namely the allegation that he had been dealing in the drugs. That point is answered by the circumstance that none of the individual sentences imposed in respect of the three offences of possession with intent have been challenged. The contention is that it was wrong to make those sentences cumulative upon the earlier sentence. For the reasons already indicated I do not consider that the end result produced a total sentence disproportionate to the various offences which were committed on 22 August 1996.

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78 It follows that no miscarriage of justice having been established, the extension of time should be refused.

79 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and to the orders proposed by his Honour.

80 ANDERSON J: I have had the advantage of reading a draft of the Chief Justice's judgment in this matter. For the reasons set out in that judgment, with which I agree, I would dismiss the appeal against conviction and refuse leave to appeal against sentence.