EBE v The State of Western Australia
[2009] WASCA 236
•22 DECEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EBE -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 236
CORAM: OWEN JA
WHEELER JA
PULLIN JA
HEARD: 17 NOVEMBER 2009
DELIVERED : 22 DECEMBER 2009
FILE NO/S: CACR 31 of 2009
CACR 32 of 2009
BETWEEN: EBE
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WISBEY DCJ
File No :IND 1169 of 2007
Catchwords:
Criminal law - Appeal against conviction and sentence - Possession of methylamphetamine with intent to sell or supply - Meaning of "return" in definition of supply - Discount for cooperation with authorities
Legislation:
Misuse of Drugs Act 1981 (WA), s 3
Result:
Appeal against conviction dismissed
Appeal against sentence allowed
Sentence of 4 years' imprisonment set aside
Sentence of 3 years' imprisonment imposed
Category: B
Representation:
Counsel:
Appellant: Mr L A Margaretic
Respondent: Mr P D Yovich
Solicitors:
Appellant: Alana Padmanabham
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
The State of Western Australia v Tran [2008] WASCA 183
OWEN JA: I agree with Wheeler JA.
WHEELER JA: This an application for leave to appeal against conviction and sentence. It was ordered that the application for leave be heard together with the appeals.
Background
The appellant was charged with one offence, that in early 2007 he had possession of methylamphetamine with intent to sell or supply it to another. The police had searched premises, pursuant to a search warrant, at a time when the appellant was visiting those premises. He was searched, and two packages were found in his clothing. They contained a substance in clipseal bags, wrapped in tissues then wrapped in other wrapping. The packages were sent for analysis and the contents were found to be 49.1 g of methylamphetamine of 13% purity.
The appellant was cautioned and underwent a videotaped record of interview. Initially, the appellant claimed that he knew nothing about the packages and that the police had planted them in his clothing. He was arrested and his house was searched. There were found in his bedroom scales which contained traces of methylamphetamine, approximately $30,000 in cash, ammunition and a homemade firearm, lists of names and figures, a substance commonly used as a cutting agent, clipseal bags and a chemical formula for making methylamphetamine.
The appellant initially agreed to plead guilty and made several statements of fact. He said that the packages were purchased from the person who lived in the house which he had been visiting. He said that he had tried the methylamphetamine and found it be of a poor quality and was returning it on the morning of the search. The State's primary case was that this latter statement was untrue, and that the appellant was in fact was a commercial drug dealer. However, in the alternative, it was submitted that even if the appellant's account was accepted, then pursuant to the definition of "supply" under the Misuse of Drugs Act 1981 (WA) (the Act), "supply" included return.
The defence evidence was that the appellant was a heavy user of drugs. He did not give evidence concerning the purpose for which he had purchased the drugs. He gave evidence that he wanted to return these drugs to the supplier because of their poor quality.
The appellant was convicted of possession of methylamphetamine with intent to sell or supply it to another. He was sentenced to 4 years' imprisonment with eligibility for parole.
Conviction appeal
There are essentially two grounds of appeal against conviction. Ground 1 is concerned with the proposition that the learned trial judge erred in directing the jury that an intention to return the drugs, in circumstances described by the appellant, was an intention to supply them. It is asserted that proof of an intention to "return" for the purposes of the Act means "proof of an intention to return pursuant to some sort of prearranged plan or agreement with the supplier, wherein the drugs have been held by the accused on behalf of the supplier" (in effect, as I understood it, some form of bailment). The second ground is that his Honour erred in directing in a manner that invited speculation as to the purpose of the attendance at the appellant's address by persons "of a dubious nature".
The grounds of appeal have apparently been drafted by senior counsel; the appellant was not represented by senior counsel at the hearing of this appeal. At the hearing of the appeal, counsel who appeared for the appellant did not resile from ground 1, but did not address oral argument to it, except in relation to one particular. That was a proper course in circumstances where counsel's instructions were not to abandon any of the grounds, but where counsel was not in a position to make any fairly arguable oral submission in support of it.
Ground 1
Ground 1 can be dealt with briefly. As it consists of particulars (a) ‑ (d), it is rubbish. "Return" is an ordinary English word meaning to give, take or send back. The appellant, on his own account, had said that he had obtained the drugs from a person and was taking them back. That meant that he was returning them. Because s 3 of the Act defines "supply" to include "return", it is plain that his Honour's direction to the jury was correct.
It appears from the submissions made at trial, and from the written submissions in support of ground 1, that counsel then representing the appellant had a view, based upon the Second Reading Speech for the amending Act which inserted the word "return" into the definition, that Parliament had in mind, at the time of the amendment, some particular scenario involving a person acting in concert with another to effect a return. However, the word "return" is one of clear meaning and no doubt or difficulty arises from its context. Nor can it possibly be suggested that reading "return" in its ordinary sense gives rise to any odd or unjust result. A person who returns to a supplier drugs which, for one reason or another, that person does not want (rather than, for example, destroying the drugs) is, in effect, reintroducing the drugs into the supply chain in a way which permits the supplier then to supply them to another. An act of return of that kind would appear to me to be part of the mischief within the contemplation of the Act.
The only particular of ground 1 which appears to be directed to a slightly different point is (e), which asserts that his Honour erred in directing that, if the jury did not accept the appellant's evidence as to an intention to return the drugs, there was no other evidence that would enable the jury to come to the view that the appellant did not have an intention to sell or supply the drug to another. There were oral submissions developed in relation to that particular. The appellant's counsel before us pointed to evidence from the appellant that he was a heavy user of drugs. It was submitted that if the jury had rejected his evidence concerning the proposed return, it might have been possible for them to infer, from his evidence of his rate of usage, that he intended to use the drugs himself.
It is unlikely that the jury in the present case would have formed the view that the appellant had been untruthful about his intention, disregarded the other drug‑related material, and drawn from the appellant's evidence about his usage an inference which satisfied them that the appellant had rebutted the presumption arising from the quantity of drug with which he was found. However, I do not think that his Honour took that line of reasoning away from the jury.
The context of his Honour's direction is important. Senior counsel for the appellant addressed the jury, it appears, in a way which effectively invited them to bring in a perverse verdict. Having had a warning of the way in which his Honour would instruct the jury in relation to the question of "return" of the drug, counsel for the appellant foreshadowed that direction, but told the jury that they could, nevertheless, bring in whatever verdict they thought fit. In that context, a firm direction about the most logical way in which the evidence should be viewed, and the consequences of that, was called for.
Having directed the jury that if they accepted the appellant's evidence about the intended return, that would constitute an intention to sell or supply, his Honour turned to what the position would be if the appellant's evidence in that respect was put aside. His Honour said (at ts 232):
But putting that evidence aside, it would be open to you to conclude that there is nothing else in the evidence that would enable you to come to the view that the accused did not have an intention to sell or supply the drug to another. But there is no other material which would satisfy you that [it] is more probable than not that he did not have that intention and that would displace the presumption to which I have made reference. In those circumstances, if you were satisfied - if you didn't accept that evidence, you put it to one side and you were satisfied that there was nothing else in the evidence that would suggest to you on the balance of probabilities that there was another purpose [presumably for possessing the drug] the proper verdict, assuming you are satisfied as to the other elements - that is that he was the offender, that he possessed the substance and that he knew what it was - the proper verdict would be one of guilty. (emphasis added)
His Honour had earlier directed the jury that they could accept part only of the appellant's evidence. He left to the jury, as a possible verdict, conviction of possession simpliciter. It would appear to me that his Honour left open to the jury, as a matter of law, the reasoning contended for by counsel for the appellant (at ts 231). I would add that I am not convinced that merely adducing evidence of heavy usage, without more, would suffice to satisfy the onus lying upon an accused person in possession of more than a prescribed quantity of drug, to establish on the balance of probabilities that he or she possessed the drug for a purpose other than sale or supply. As a matter of logic and common experience, being a user of drugs - even a heavy user - is not inconsistent with also being a person who sells or supplies drugs to others. Whether evidence of heavy usage, without more, is capable of proving to any standard that an accused person did not have an intention to sell or supply will depend, no doubt, upon all of the circumstances of the case. In the present case, it has not been necessary to consider whether such a verdict was properly open.
Ground 2
So far as ground 2 is concerned, the State's case at trial was that the appellant was a commercial level drug dealer, and there was circumstantial evidence in support of this proposition. I have already referred to the items found in the appellant's home. In addition, a Ms T, who had been living with the appellant for approximately a month at the time of the search, also gave evidence. In examination‑in‑chief, she said that other people visited the house "occasionally" and, when cross‑examined on this point, said that she did not usually continue to be present when they visited. She said that she never saw the appellant offer to sell drugs to anyone. In re‑examination, asked why she would leave when people came to the house, she said (at ts 61):
Really because I didn't want to, you know, get involved with his friends. I used to just go and watch television in the bedroom. They were his friends, not mine.
Asked why it was that she did not want to get involved with them, she said (at ts 61):
No reason, I just didn't like the look of them.
It does not seem to be suggested in the submissions in support of ground 2 that his Honour had misstated the effect of Ms T's evidence. Suggesting that they were of a "dubious" nature seems to me to adequately capture the flavour of what Ms T had said.
By itself, that evidence could not possibly have given rise to an inference of drug dealing. However, it is proper for the State to adduce, as part of a circumstantial case in relation to an offence of this kind, evidence of the numbers and frequency of visitors to an accused person's house. It was relevant that Ms T's evidence was to the effect that these visitors did not attend for the purpose of having a social visit with the appellant and Ms T as a couple. Further, the State, in asking its questions in re‑examination, was clearly exploring the question of whether Ms T had absented herself because of some knowledge concerning the purpose of the visits. Her response was relevant to a proper assessment of her evidence.
Conclusion
I would refuse leave to appeal in relation to ground 1. I would grant leave in relation to ground 2, but dismiss the appeal.
Sentencing remarks
The trial judge set out the evidence given at trial as to the facts of the offending, and noted the factual dispute as to whether the appellant was involved in commercial distribution (BAB 31). Given that intent to sell or supply was an element of the offence with which the appellant was convicted, an assertion that there was no commercial element involved was a mitigating factor which the appellant bore the onus of proving on the balance of probabilities. The trial judge was satisfied beyond reasonable doubt that the appellant possessed the substance with the intent to disseminate it commercially (BAB 31). He referred to the quantity and purity of the drug, and to the improbability, as he saw it, that a user would be able to return drugs to their supplier if unsatisfied with their quality. He found the explanation given by the appellant for the cash and other paraphernalia unconvincing, and found that all the material pointed to a commercial element to the activity. He said:
You fall to be sentenced on the basis that you possessed the drug with the intent to sell it or a substantial part of it to another or other and that this was not an isolated event (BAB 32).
Given the seriousness of the offence, a term of imprisonment was required.
In dealing with personal factors, the trial judge noted that the appellant was in his early 40s and was born overseas. He was married, but separated, with three children. He had worked consistently in Western Australia until suffering a back injury during the course of his employment. This led to the development of depression, which led the appellant to take prescription medication. He then began to take marijuana and methylamphetamine, becoming a heavy user of methylamphetamine (BAB 33). His Honour did not accept that the drug addiction was causally related to the back injury, and said that it did not provide mitigation for the offence in question.
The appellant had no adverse history and had demonstrated a desire to address substance abuse in the community (BAB 33 ‑ 34). He had acknowledged the evil of illicit substance dissemination, which was a positive indicator for rehabilitation (BAB 34).
His Honour sentenced the appellant to a period of 4 years' imprisonment.
Sentence appeal
There are three grounds of appeal against sentence. The first two can be dealt with fairly briefly.
Ground 1
This ground concerns the proposition that his Honour erred, in sentencing the appellant, in finding, in effect, that his drug addiction was not causally related to a back injury which the appellant had suffered, or to other personal circumstances. It is not necessary to determine as a matter of fact whether his Honour did err in making this finding. That is because his Honour continued:
Even if that were the case, it would not provide mitigation for your dissemination of methylamphetamine for reward.
His Honour had found that there was no suggestion that the appellant was dealing to finance his own addiction. Drug dependence which leads to dealing in order to finance it may be relevant where it appears that, but for the dependency, the offender would not have engaged in selling the drug and where it also appears that there is reason to believe that the offender is overcoming, or has overcome, his addiction. In that case, the need for personal deterrence will be reduced, compared with other cases. His Honour's finding of a "commercial" element to the offending took the appellant out of this category.
Ground 2
Ground 2 asserts that his Honour erred in making the finding that the offending was not isolated, but was part of a broader commercial enterprise. The written submissions contain the startling submission that his Honour was "compelled to sentence on the basis that this was an isolated event". There is no authority in support of that proposition, no doubt because all authority is to the contrary. It was necessary for his Honour to make a finding about the circumstances of the offence, and about any relevant circumstances personal to the appellant which went to his moral culpability. Had the offence been an isolated one, then the appellant would have had available to him the mitigating factor of good character. Had the appellant been engaged in a single transaction of no commercial sophistication, that might have properly led the sentencing judge to a view that there was a lesser need for personal deterrence. It was therefore necessary for his Honour to determine, if the material before him permitted him to do so, whether the appellant had engaged in a "one‑off" transaction, or whether this offence was part of a broader commercial enterprise. The material to which I have referred, relating to the scales, the cash, the lists and so on plainly was capable of satisfying his Honour beyond reasonable doubt that this offence had been part of a broader commercial enterprise. His Honour was not compelled to sentence on the basis most favourable to the appellant: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281.
Ground 3 - manifest excess
It is submitted in relation to this ground that the sentence is manifestly excessive, having regard to certain matters. In my view, only one of them is of relevance. It is a matter which leads me to the view that the sentence is manifestly excessive. It is the reason why the appellant is referred to, in these reasons, not by his name, but by initials which are not the initials of his name. His Honour did take this matter into account, referring to it obliquely in his sentencing remarks. An oblique reference was proper, having regard to the material.
That material was to the effect that the appellant had provided information which proved to be of considerable assistance to the authorities in relation to certain other drug offenders and had taken certain steps to assist in the apprehension of one of them. One of the two offenders was an offender in relation to whom police had previously had no information.
The question of the appropriate weight to be given in relation to co‑operation with authorities was considered by this court in The State of Western Australia v Tran [2008] WASCA 183, by Steytler P at [12] and by Miller JA at [75] ‑ [81]. I do not repeat what was said there. Having regard to the matters which are relevant to the setting of an appropriate discount, it is clear from the material before us that, in the present case, there was significant practical use to the authorities provided by the appellant's assistance. The assistance was not, as is sometimes the case, assistance which appears to have placed him in significant danger at the time at which he gave it, but there is always, in cases involving the drug trade, a real risk that it will be suspected, or will become known, who has provided information which led to the detection of a particular offence, and there is therefore always a risk to those providing information. The greater the scale of the operation in respect of which information is given, and the more sophisticated it is, the greater the risk.
In the present case, it appears to me that the sentence imposed upon the appellant would have been within an appropriate range for an offender convicted after trial of possession with intent to sell or supply of a drug of this quantity and purity, who had some mitigating factors. I would not accept that, as the appellant's counsel submitted, the sentence was at the top of, or outside, the range for an offence and offender of that kind, but neither could it be described as lenient. The sentence actually imposed suggests that, while his Honour recognised the significant co‑operation given by the appellant, he did not reward it with a discount of the magnitude suggested by the authorities. In the light of that co‑operation and assistance, the sentence imposed upon the appellant is manifestly excessive.
Conclusion
I would therefore grant leave to appeal against sentence, allow the appeal, set aside the sentence of 4 years' imprisonment with eligibility for parole, and impose a sentence of 3 years' imprisonment with eligibility for parole, to commence from 6 February 2009.
PULLIN JA: I agree with Wheeler JA.
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