Gerritzen v Morgan
[2015] WASC 326
•1 SEPTEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: GERRITZEN -v- MORGAN [2015] WASC 326
CORAM: CORBOY J
HEARD: 27 AUGUST 2015
DELIVERED : 1 SEPTEMBER 2015
FILE NO/S: SJA 1062 of 2015
BETWEEN: KELLY MARIE GERRITZEN
Appellant
AND
SEAN IVOR RAYMOND MORGAN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE E HAMILTON
File No :BU 6510 of 2015
Catchwords:
Criminal law - Appeal - Whether error made in interpreting urinalysis results - No new principle
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms S H King
Respondent: Ms T McArthur
Solicitors:
Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Fernandes v The State of Western Australia [2009] WASCA 227
Harding v The State of Western Australia [2015] WASCA 27
Sumption v Gaunt [2013] WASC 258
The State of Western Australia v Johnson [2010] WASCA 187
The State of Western Australia v Thompson [2014] WASCA 108
Tran v The State of Western Australia [2010] WASCA 38
CORBOY J: The appellant pleaded guilty to a charge that on 20 December 2013 at Boyanup, she, with intent to supply to another, had in her possession 3.58 g of a prohibited drug, namely amphetamine, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). She was sentenced to an immediate term of imprisonment of 7 months.
The appellant appeals from that sentence on the ground that 'the learned sentencing magistrate erred in fact in determining that a urinalysis result below the applicable cut‑off was "not a negative result"'. Although the matter is not entirely free from doubt, I am not persuaded that the learned magistrate made the error alleged. However, if her Honour did err, the error was not material and the sentence imposed was within the 'range of a proper exercise of sentencing discretion': Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 [41] (Murray J); Harding v The State of Western Australia [2015] WASCA 27 [37] ‑ [38] (Martin CJ) [73] ‑ [75] (Mazza JA, with whom Hall J agreed); Fernandes v The State of Western Australia [2009] WASCA 227 [9] ‑ [10] (McLure P).
The offence
Section 6(1)(a) of the Misuse of Drugs Act provides, so far as is relevant, that a person who, with intent to sell or supply it to another, has in his or her possession a prohibited drug, commits a crime. Section 9 of the Act provides that, if a person is charged before a court of summary jurisdiction with an offence under s 6(1) in respect of a quantity of a prohibited drug referred to in sch III that is less than the quantity specified in that schedule, the summary conviction penalty for the offence is that set out in s 34(2)(b).
Amphetamine is a prohibited drug referred to in sch III; the quantity specified in the schedule for amphetamine being 4 g. Accordingly, the summary conviction penalty specified in s 34(2)(b) of the Act applied to the offence for which the appellant was convicted. Section 34(2)(b) provides that a summary court may impose a fine not exceeding $5,000 or imprisonment for a term not exceeding 4 years or both.
The facts
The facts alleged by the prosecutor and accepted by the appellant were that, on Friday 20 December 2013, the police searched the appellant's motor vehicle at Boyanup. A small black pouch was located in the appellant's handbag. Eight clipseal bags containing a crystalline substance were located within the pouch. Small scales with spare batteries, a list of names and several empty clipseal bags were also located. The appellant was arrested and taken to the Busselton police station where the crystalline substance was tested and found to be amphetamine. The amphetamine was weighed at 3.58 g.
The appellant was charged with possession with intent to sell or supply. She did not initially plead to the charge in order to obtain legal advice. Subsequently, negotiations were conducted which resulted in the charge being amended to delete the allegation that she possessed the prohibited drug for the purpose of sale. The appellant then pleaded guilty to the amended charge.
The source of the alleged error
The magistrate had three pre‑sentence reports in respect of the appellant: the first report was dated 23 April 2015, the second report was dated 18 May 2015 and the third was an updated report dated 17 July 2015. The reports noted that the appellant had been granted bail on 19 May 2015 pending sentencing on conditions that included that she was to submit to random urinalysis as directed by a community corrections officer.
Attached to the undated pre‑sentence report were two affidavits made by Terri Anne Godden, a senior community corrections officer within the Adult Justice Services Division of the Department of Corrective Services. The affidavits deposed to the appellant's compliance with her bail conditions. In an affidavit made on 30 June 2015, Ms Godden stated that:
On 19 June 2015, Ms Gerritzen provided a urine sample, as directed, this returning positive results for amphetamine, methylamphetamine & MDMA, though not detected above the cut‑off threshold of 150 mg/L.
It was that statement which the appellant contends the magistrate erroneously took into account in sentencing her.
The alleged error
The appellant submitted that a urinalysis result could only be positive or negative and that a result below the cut‑off point was a negative result, at least for the purpose of sentencing. Accordingly, it was contended that the only inference that could be drawn from the statement made by Ms Godden in her affidavit of 30 June 2015 was that the appellant had returned a negative result to the test conducted on 19 June 2015 - a matter that was favourable not adverse to her circumstances for the purpose of sentencing.
The appellant sought, in support of that submission, to tender in the appeal a copy of Australian/New Zealand Standard AS/NZS 4308: 2008 ‑ 'Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine' (the Standard). Clause 1.3 of the Standard contains a definition for the term 'cut‑off concentration'. The term is defined as, 'a value at or above which the drug/metabolite is deemed to be "detected" and below which the drug/metabolite is deemed to be "not detected"' (emphasis added). The cut‑off level for amphetamine‑type substances is 150 ug/L. There is a note to the definition of 'cut-off concentration' that states that 'in some contexts the words positive and negative are used respectively for detected and not detected'.
It should also be noted that the Standard contains a definition of the expression 'drug free': 'a urine specimen demonstrated to be free of all drugs and/or metabolites'.
Section 4 of the Standard provides for laboratory screening procedures. Clause 4.10 provides that, if a result is less than the 'screening cut-off', the drug class shall be reported in accordance with cl 4.11.1. That clause provides that 'if all requested drug classes are not detected (negative) and the integrity of the specimen is not in question then a final report shall be issued'. The contents of the report are to be according to cl 4.11.2.
A result that is above the cut-off concentration will be subjected to further confirmatory testing according to the procedures specified in section 5 of the Standard. That section 'sets out the confirmatory procedures for the unequivocal identification and quantitation of drugs and/or their metabolites in human urine' (emphasis added).
The respondent objected to the Standard being received in the appeal, but solely on the ground that the magistrate had not relied on the urinalysis result of 19 June 2015 when sentencing the appellant.
The Standard contains much technical information that requires further expert evidence to be fully understood and applied. Ordinarily, that would count against its admission into evidence - particularly, in an appeal. However, I will receive the Standard as an exhibit in the appeal given the appellant's proposed ground of appeal and the way in which the appeal was contested. However, the limitations inherent in the court considering the effect of a technical document without the benefit of expert evidence must be recognised.
The magistrate's sentencing remarks
The magistrate commenced her sentencing remarks by summarising what she described as the 'rather lengthy' history of the proceedings. Her Honour characterised the plea of guilty as 'late' (ts 22) and did not refer to s 9AA of the Sentencing Act 1995 (WA) or to any percentage discount for the plea that might have been allowed pursuant to that section. However, her Honour stated:
And, therefore, albeit a late plea in relation to the original issue of intent to sell/supply, some discount must apply to the term of imprisonment that I would impose. In the circumstances, I had considered prior to turning my mind to the question of a discount that the appropriate disposition was one of 9 months in custody. However, I will take into account, albeit at a late stage in the history of the entire matter, a plea of guilty to supply and I impose a term of imprisonment of 7 months (ts 22).
That was a generous discount expressed as a percentage for the purpose of s 9AA of the Sentencing Act having regard to the history of the proceedings and her Honour's comments about that history.
The magistrate also observed, in relation to the preparation of the pre‑sentence reports, that:
I was the judicial officer who originally ordered that the pre‑sentence report ought to be prepared, that I gave Ms Gerritzen a further opportunity when she had failed to turn up to be interviewed … and then gave her the opportunity of demonstrating to the court by way of random urinalysis that all of the things she had asserted, that is, that she was no longer associating with a drug peer culture, that she was not using, that she was determined to move from this part of her life and create a bright future for herself could be demonstrated to the court prior to any sentencing.
Ultimately, my concerns as they related to the material placed before the court, of which there is dispute in relation to that and we have heard submissions about that, I was not convinced that Ms Gerritzen, while possibly still being determined to do something about her life, appears to have been unable to do what was required of her. I accept the assertions that the court cannot, as a matter of fact, determine that the three levels that came back as being below the threshold for one reason or another are positive, but they are certainly not negative results and they clearly indicate an ongoing association, either directly or indirectly, with the drug culture (ts 19).
The magistrate noted that the appellant had significant family support. Reference was made to a letter from the appellant's mother in which it was stated that the appellant was extremely remorseful and appeared to be focused on 'moving forward' with her life. It was also noted that the appellant had 'extreme concern' for her children - in particular, she was concerned that they should be protected from the consequences of her offending. Her Honour again referred to the pre‑sentence reports, stating that she did not intend to repeat the contents of the reports and that she also did not intend to repeat all of the affidavit material that had been received by the court, 'a great deal of which is objected to by defence counsel and I only act on the material in those reports which is factual as it relates to the results of analysis and the results as they are connected to attendance as required' (ts 20).
Her Honour referred to the observations made by the Court of Appeal in The State of Western Australia v Thompson [2014] WASCA 108 and The State of Western Australia v Johnson [2010] WASCA 187. Her Honour cited from the reasons of McLure P in Thompson:
Moreover, the sentencing judge erred in concluding that the type of sentence customarily imposed for a breach of s 6(1)(a) of the Act, being a term of immediate imprisonment, depends upon establishing commerciality. That is not the case [36].
Reference was also made to the explanation given by McLure P in Johnsonas to why a suspended term of imprisonment for an offence against s 6(1) of the Misuse of Drugs Act was exceptional.
Her Honour concluded that the offender's circumstances in Thompson and those of the appellant were similar except, 'the difference being that the behaviour of Thompson thereafter [after conviction] is significantly different to what has happened here' (ts 21). That was a reference to the fact that the appellant had offended while on bail and had not complied with her bail conditions.
Finally, the magistrate separately considered whether the term of imprisonment to be imposed should be suspended. However, her Honour concluded that 'issues of general deterrence' made it inappropriate to suspend a term of imprisonment.
The parties' submissions
The appellant emphasised three comments made by the magistrate in her sentencing remarks. First, her Honour stated that she had taken into account, among other things, the appellant's behaviour while on bail prior to sentencing (ts 21). Second, her Honour stated that the appellant had been given an opportunity to demonstrate 'to the court by way of random urinalysis that all of the things she had asserted, that is … that she was not using, that she was determined to move from this part of her life and create a bright future for herself, could be demonstrated to the court prior to sentencing' (ts 19). Third, her Honour stated that the result of the tests conducted on 19 June 2015 was 'certainly not' a negative result and 'clearly indicate an ongoing association, either directly or indirectly, with the drug culture' (ts 19).
As has been noted, the appellant submitted that there could only be positive and negative tests under the Standard and that it was apparent from the comments summarised above that the magistrate had erred by having regard to the result of the sample taken on 19 June 2015 in circumstances where the appellant's response to the urinalysis bail condition was a significant factor for sentencing.
The respondent referred to an exchange between the appellant's counsel and the magistrate in the course of sentencing submissions. In particular, the appellant's counsel submitted, in relation to the urinalysis result of 19 June 2015, that:
Your Honour, my submission is that the court should not have regard to that as a positive sample, because it is below the threshold, and it's inexplicable why the rules should change for my client if that's the rule that is applied to all other people that are required to do urinalysis. In any event, my client instructs that she was at a party.
There was a 2 by 3 metre garden shed with seven or eight people crammed into it. They were smoking in there - people were smoking illicit substances in the shed. She went in to speak to someone. She was in there for about 20 minutes. She instructs that she has seen people smoke MDMA in the sort of utensil that would ordinarily be used to smoke cannabis in the past, but she doesn't know if anyone was doing it in there at the time, and it would seem that that may be consistent with a reading that's below the threshold level. My primary position, however, is that the court should not have regard to that as a positive result in the circumstances described in par 12 (ts 10).
The respondent also relied on comments made by the magistrate in the course of the prosecutor's submissions:
Well, I do note, sergeant, that Ms Walsh [the appellant's counsel] has said that in respect to the - for the report, the affidavit of 30 June as it relates to the report flowing from the urinalysis of 19 June, that the explanation for that - or the court cannot take - the court cannot take that into account as a positive result for using amphetamine, methamphetamine and MDMA because they were not detected above cut‑off thresholds. And the explanation for that is that Ms Gerritzen had been at a party, as I understand the submission, where people were smoking which she knew were illicit substances and she remained in the shed for 20 minutes and therefore that's an explanation as to how those results came to be (ts 14 ‑ 15).
The respondent submitted that when the magistrate's remarks were read as a whole it was apparent that no determination had been made as to why at least some trace of amphetamine had been found in the 19 June 2015 sample.
Disposition of the appeal
In my view, the word 'deemed' used in the definition of 'cut-off concentration' in the Standard is significant for the appellant's argument. It indicates that a drug/metabolite may be present in a tested specimen but the result will be treated in a particular way - it will not be subjected to confirmatory testing and a final report will be issued. A specimen may not be 'drug free' and yet be deemed to be a 'not detected' or 'negative' result. That is consistent with the cut-off concentration level being used as a screen and presumably, recognises that a drug/metabolite may be present in a tested specimen but that its presence will not be sufficiently significant or unequivocal for the purpose of the Standard (and given the intended use of the Standard).
The parties did not refer the magistrate to the Standard in their sentencing submissions. However, her Honour's comments about the result for the sample taken on 19 June 2015 were consistent with my understanding of the Standard. She recognised that the result was not a positive result but that it did not mean that amphetamine had not been present in the tested specimen. That was not only a rational conclusion from the manner in which the test result was reported but was consistent with the submissions made by the appellant's counsel as to how traces of amphetamine might have been present in her sample.
Accordingly, I do not consider that the magistrate made the error alleged by the appellant. However, the error, if made, was not material. The appellant admitted to having been present while she was on bail at a place where illicit substances were apparently consumed. It was the continuing association with the 'drug culture' that concerned the magistrate rather than the result of any particular urinalysis test. That concern was appropriate having regard to the appellant's criminal history. She had been previously convicted of seven offences against the Misuse of Drugs Act.
Further, the sentence imposed was within the range reasonably available to the magistrate in the exercise of a sound discretionary judgment having regard to the various factors specified in s 6 of the Sentencing Act.
The major consideration in sentencing for this type of offence is personal and general deterrence. The Court of Appeal explained in Johnson why the imposition of a suspended term of imprisonment is exceptional. It was accepted in Tran v The State of Western Australia [2010] WASCA 38 that the customary range of sentences for offences involving the possession of methylamphetamine with intent to sell or supply, involving quantities of between 3 g and 65 g, was between 2 and 4 years' imprisonment. However, the amount of the prohibited drug possessed by the offender is only one factor involved in sentencing. Other factors included the nature and level of the offender's participation in drug dealing and whether the offending was committed solely for commercial gain.
As has been noted, the magistrate considered that the circumstances of the appellant were similar to those of the offender in Thompson. The Court of Appeal in Thompson, on resentencing the offender, imposed a term of imprisonment of 18 months to be suspended for 12 months. That was in circumstances where the offender had in his possession 4.34 g of methylamphetamine, and the sentencing judge had found that only a small part of the methylamphetamine in the offender's possession would be supplied, without reward, to another. However, the Court of Appeal also took into account that the offender had not used prohibited drugs since being charged; that he had taken methylamphetamine to deal with the adverse side effects from significant chemotherapy treatment for hepatitis C and that there were a number of other matters that the primary judge had taken into account in favour of the respondent.
In Sumption v Gaunt [2013] WASC 258, Hall J allowed an appeal against sentence where the offender had pleaded guilty in the Magistrates Court to possessing 3.5 g of methylamphetamine. The offender had been stopped by the police while driving; a bag containing methylamphetamine was found in her possession, along with some clip-seal bags; and a set of electronic scales were found on another woman in the car. It was accepted that the offender had possessed the prohibited drug for personal use and sharing with friends. The offender was the mother of three children below the age of 10 years (the appellant also has children) and like the appellant, she had family support. She had four previous convictions for offences against the Misuse of Drugs Act - as with the appellant, each prior offence apparently involved a relatively small quantity. Hall J set aside the sentence of 30 months' imprisonment that had been imposed and resentenced the appellant to a term of immediate imprisonment of 9 months.
Every offender must, of course, be sentenced according to the particular circumstances of their offending and their personal circumstances. However, there are obvious similarities between the circumstances of the offender in Sumption v Gaunt and those of the appellant. The decision in Sumption v Gaunt provides support for the view that I have formed that the sentence imposed for the appellant by the magistrate was within the range reasonably available in the exercise of a sound discretionary judgment. The sentence is not so unjust or unreasonable as to require appellate intervention.
Leave to appeal will be refused and the appeal dismissed.
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