Brittain v The Queen - [2001] WASCA 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: BRITTAIN -v- THE QUEEN [2001] WASCA 92

CORAM: KENNEDY J
WALLWORK J
GROVE AJ

HEARD: 07 MARCH 2001

DELIVERED : 23 MARCH 2001

FILE NO/S: CCA 248 of 2000

BETWEEN: PETER ANDREW BRITTAIN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Possession of cocaine with intent to sell or supply to another - Possession of MDMA with intent to sell or supply to another - Claim that portion of drugs possessed for offender's personal use - Uncertainty as to basis upon which offender sentenced - Sentences quashed - Offender to be re-sentenced

Legislation:

Nil

Result:

Leave to appeal against sentences granted
Appeal allowed
Sentences quashed
Applicant to be re-sentenced

Representation:

Counsel:

Applicant: Mr D Grace QC & Mr J B Prior
Respondent: Mr K P Bates

Solicitors:

Applicant: Williams Ellison
Respondent: State Director of Public Prosecutions

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

Duncan v The Queen (1983) 47 ALR 746
R v Olbrich (1999) 199 CLR 270

Case(s) also cited:

Crutch v The Queen [1999] WASCA 187
Dinsdale v The Queen (2000) 74 ALJR 1538
Giannopoulos v The Queen [2000] WASCA 396
Lowndes v The Queen (1999) 195 CLR 665
R v Bellissimo (1996) 84 A Crim R 464
R v Collins (1993) 67 A Crim R 104
R v Darwell (1997) 94 A Crim R 35
R v Ruich [2000] WASCA 84
R v Weston [2000] WASCA 389
Wagenaar v The Queen [2000] WASCA 325
Watson v The Queen [2000] WASCA 119

KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J. I am in agreement with those reasons and with the orders which his Honour proposes. I also agree with the additional comments to be made by Grove AJ.
WALLWORK J: On 3 November last year the applicant was sentenced after a trial at which he had pleaded not guilty, to two concurrent terms of 7 years imprisonment for having had in his possession at Leederville on 1 July 1998, quantities of cocaine and alpha‑Dimethylphenylethylamine with intent to sell or supply the drugs. At the same time the applicant was sentenced to two terms of six months imprisonment to be served concurrently with the abovementioned sentences for two offences which were dealt with under a s 32 notice. They were firstly, his being in possession of four tablets containing 1.5 per cent methylamphetamine and secondly, being in possession of two small clipseal bags, one of which was found to contain 0.15 grams of methylamphetamine at 14 per cent, and the other 0.3 grams of methylamphetamine at 2.1 per cent.
With respect to the two offences for which the applicant received the two concurrent terms of 7 years imprisonment, the amount of the drugs in both cases was over 13 times the amount prescribed in the Misuse of Drugs Act 1981, which was 2 grams. The relevance of the two amounts being over the 2 grams prescribed amount is that pursuant to s 11(a) of the Act, a person found with more than 2 grams of the relevant drugs in his or her possession is presumed, unless the contrary is proved, to have the drugs in that person's possession with intent to sell or supply.
The appellant's defence at the trial had been that he had been in possession of the relevant drugs for his own personal use. During the course of his summing up the learned Judge told the jury:
"In relation to the first charge, in order for the Crown to prove and succeed in you finding a verdict of guilty on that charge, there are really five things that they have to prove and each of them has to be proved beyond reasonable doubt: that the offender was in fact Mr Brittain; that the substance was the prohibited drug cocaine; that he was in possession of that cocaine; that he knew that what he was in possession of was cocaine and ‑ and this is really the central issue that you are going to have to determine ‑ that when he was in possession of it, he had the intention to sell or supply any part of that substance to another person or persons."

A little further on his Honour said:
"The issue is: what was his intention when he was in possession? The Crown says his intention was to sell or supply. He says, 'that wasn't my intention. My intention was that I was going to use it for my own habit.' The second charge has exactly the same elements that have to be proved. All you would do is change the word cocaine and delete that word and put in the word ecstasy. The same element there is in dispute as well. The Crown says that he had had that ecstasy with an intention to sell or supply it to another. He said that he had it in his possession for his own use and not to sell or supply it. That's the issue that is live in both these charges…"
The primary submission for the applicant in this application is that the learned Judge erred in that he had sentenced the applicant for the possession of a greater amount of the drugs than had been established by the jury's verdicts. It was submitted that the verdicts only meant that the applicant had intended to sell or supply a part of the quantity of the drugs found in his possession and not necessarily a quantity approaching the whole of those drugs. The Crown had not proved how much of the drugs the applicant had intended to sell or supply or to use himself.
As stated above, the learned trial Judge told the jury that the central issue they had to determine was whether the applicant had had the intention to sell or supply "any part of that substance" to another person or persons. His Honour further elaborated on that when he told the jury that, "The Crown case is based primarily on the fact that the cocaine in his possession was more than the amount prescribed by Parliament which one may have in possession for their own use which is 2 grams, and we here, we are talking about 27 grams, over 13 times as much as one is allowed to have in possession for their own use."
Further on in the summing up the Judge said:
"It may well have been, and the Crown was submitting to you, an attractive proposition to Mr Brittain to sell some of the cocaine and ecstasy not only to repay the money that he owed to Gary for these drugs but also to reduce his credit card debt."
His Honour also told the jury that the Crown was not saying that the applicant may not have been a user.
In making submissions as to sentence after the convictions had been recorded, counsel for the applicant told the Judge that the jury verdict "means nothing more, in my respectful submission, than the jury were satisfied that he was possessed of at least ‑ that which he was possessed, he intended to sell or supply at least a part of it." Counsel told the Judge that with respect to the cocaine it was not known how much of that he had intended to sell or supply and that "if one is considering the appropriate standard of beyond reasonable doubt, then one could not conclude that he intended to sell or supply the whole of it or indeed intended to sell or supply half of it. All that can be said is that he intended to sell or supply a part of it."
It was submitted to the learned Judge that he should deal with the applicant in the setting of a person "who is clearly a lifestyle user of considerable significance. It is not open, in my submission, for your Honour to find beyond that, being that he intended to sell or supply a part of it. Your Honour is not able to quantify with accuracy and precision what part."
Similar submissions were made with respect to the quantity of ecstasy which was involved.
It was also submitted to the learned trial Judge that if the appropriate sentence was one which was less than 60 months, then the sentence could be suspended. It was further submitted that on the authority of Duncan v The Queen (1983) 47 ALR 746 and because the applicant had rehabilitated himself since the offences, the sentence ought to be suspended; that for in excess of 2 years the applicant had been "in a new way of life, on a new path with a young family and through his own efforts is now engaged in his own business and has a very bright and prosperous future. The community, in my submission, would be benefited not by removing him from that path, sending him into prison and placing him in a situation where all that he has worked for and strived for and the sorts of things that this Court through the Court Diversion Service tries to achieve were, to some extent, brought undone. He has, to his credit, embarked upon a significant change of life and in these circumstances which are unusual…" the sentence should be suspended.
The total amount of cocaine which had been found in the applicant's possession was 27.7 grams, the amount of MDA was 29.37 grams.
The prosecuting counsel had submitted to the learned Judge that the fact that the applicant was a user was relevant "because some of the drugs that he possessed may not be for distribution but rather for personal use." However, it was also submitted by the prosecuting counsel that, "The claim that this offender was using a great deal of this drug was put to the jury as part of his defence and rejected."
The prosecutor then said, "However I will accept, I opened the case on the basis that this man may well have been using drugs. I can't run away from that admission. However, I put the case on the basis that there was some drugs in his possession within the blue box, the four tablets and the methylamphetamine and accepted that they were for his own use. The possession of the other drugs and the way that the accused purchased them may mean that one could safely conclude that they were all for distribution."
In reply it was submitted by the applicant's counsel that the Judge could not discern from the jury's verdict that the applicant's claim that he was using a great deal of the drugs had been rejected: "What has been rejected by the verdict is his claim that all of it was for his use and indeed his evidence that he was using a great deal and the objective evidence as to that is consistent with the evidence given concerning his depletion of assets, as I said earlier."
The submission was repeated that the Judge could not conclude that all of the drugs were for distribution "and indeed it would really place this in a commercial setting that it is not, and would ignore the bulk of the evidence that was led in this case as to his drug use and his lifestyle within the nightclub industry."
His Honour reserved his decision on the question of sentence. When he came to sentence the applicant, his Honour told him that the Crown case as to the applicant's intention in relation to the cocaine and ecstasy had relied principally on the amounts in his possession, being in both cases over 13 times the prescribed amount. His Honour referred to the evidence which had been given concerning the applicant's drug use since the early nineties. His Honour said:
"It was submitted on Monday that I should find for the purpose of sentence that most of the cocaine and the ecstasy was in possession for your own use."
At the hearing of this application it was said by counsel for the applicant that that had not been the submission. That submission appears to be correct.
His Honour also said that the jury had not accepted that the cocaine and ecstasy was in the applicant's possession for his own use. His Honour went on to say:
"In the light of the jury's verdict I find it difficult to see how I can sentence on the basis that you were such a heavy user and that most of the cocaine and ecstasy were for you."
That had not been the defence submission on sentencing.
His Honour referred to the defence submission that on the evidence and by 1 July the applicant's assets had been depleted as was evidenced by the state of his credit cards and that that had fitted the picture of chronic stimulant use. His Honour said:
"That may well be the case, but possession of the cocaine and ecstasy also provided you with an opportunity to replenish your assets by onselling the drugs which you said you had bought at a considerable discount."
Significantly his Honour said:
"I accept your counsel's submission that you should not be sentenced as a commercial dealer. The Crown accepted that you may have been using drugs and that was proper in the light of the evidence of the finding of the tablets and the amphetamine and the traces on the bags in the blue box which point to that. However, if you obtained this cocaine and ecstasy to sell or supply to support your own habit, that can't be seen as a mitigating factor. … As to the level of your use, one wonders whether it was as heavy as you said it was in the light of your evidence about your activities at the Sky Bar."
His Honour referred to the applicant's employment at a particular night spot and said:
"That type of environment would have provided you with a ready market to sell or supply this cocaine and ecstasy, albeit that you may have used some of it for yourself."
His Honour made no further finding with respect to the quantity of the drugs which the applicant had intended to sell or supply, except that he said that the offences were so serious that general deterrence

outweighed any personal factors. He then sentenced the applicant to 7 years imprisonment for each of the two indictable offences.

In R v Olbrich (1999) 199 CLR 270 Gleeson CJ, Gaudron, Haine and Callanan JJ said at 337:
"As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 ‑ that a sentencing Judge: 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there were circumstances which the Judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probability.'"
In this case, in my view, the learned Judge erred in the sentencing process in that he did not make a finding as to what facts adverse to the interests of the applicant had been established beyond reasonable doubt. The remarks of his Honour to which I have referred above indicate that the applicant may have used some of the relevant cocaine and ecstasy for himself. However, in all the circumstances of this case, where the applicant had said in evidence that all of the drugs were for his own use, and in the light of the directions which had been given to the jury, which have been referred to above, it is not clear on what basis the applicant should have been sentenced.
In my view because the relevant facts were not established and found by the learned trial Judge as required by law, I would grant leave and allow the appeal.
At the hearing of this application counsel for the applicant indicated that if the appeal was allowed, he wished to make submissions as to the correct sentence which should be imposed. That seems to be a desirable course to adopt in all the circumstances.
GROVE AJ: I have had the benefit of reading the judgment of Wallwork J in draft form.
As his Honour has observed, the learned sentencing Judge in recounting a submission on behalf of the applicant that he should be found to have been in possession of most of the cocaine and ecstasy for his own use (no submission in those precise terms having apparently been made), referred to the defence rejected by the jury at trial and said that the jury

"… did not accept that the cocaine and ecstasy were in your possession for your own use".

Whilst I am conscious that these were ex tempore remarks, a fair reading of them offers understanding that this was a reference to the total quantity of drugs. The immediately following words - "In the light of the jury's verdict I find it difficult to see how I can sentence on the basis that you were such a heavy user and most of the cocaine and ecstasy were for you" - do not contradict that understanding.
For my part, I am unable to reconcile the implicit finding with the later remark "… that you may have used some of (the drugs) for yourself" and the situation is confirmed by the content of the charge to the jury and the other matters analysed by Wallwork J.
I agree with the reasons of Wallwork J, and the orders and further course of hearing which he proposes.