Heyes v The State of Western Australia

[2008] WASCA 124

HEYES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 124

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 124
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:84/2007	Heard:	9 APRIL 2008
Coram:	STEYTLER P BUSS JA MILLER JA	Delivered:	17/06/08
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	MICHAEL THOMAS HEYES THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law s 32A Misuse of Drugs Act 1981 (WA) Conviction for serious drug offence Two previous serious drug offence convictions within 10 years Drug trafficker declaration Property confiscation order under s 8 Criminal Property Confiscation Act 2000 (WA) Statutes Interpretation Taking account of antecedent facts and circumstances Whether retrospective operation Criminal law Summary conviction of an indictable offence Whether deemed to be a simple offence Whether a serious drug offence Palfrey v MacPhail doubted Statutes Interpretation Classification of offences Crimes and indictable offences Amendment of legislative scheme Effect of Criminal Code Amendment Act 2004 (WA)
Legislation:	Crimes (Confiscation of Profits) Act 1988 (WA), s 3, s 6(1)(b) Criminal Code (Qld), s 659, s 673 Criminal Code (WA), s 1, s 3, s 656A, s 673 Criminal Code Amendment Act 2004 (WA), s 58, sch 3 Criminal Procedure Act 2004 (WA), s 3(1) Criminal Property Confiscation Act 2000 (WA), s 8 Interpretation Act 1984 (WA), s 37(1)(b), s 67 Misuse of Drugs Act 1981 (WA), s 6, s 7, s 7A, s 9, s 10, s 32A, s 33, s 34
Case References:	Beckwith v The Queen (1976) 135 CLR 569 Cheatley v The Queen (1972) 127 CLR 291 Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27 Director of Public Prosecutions v Bridge [2005] WASC 36; (2005) 152 A Crim R 226 Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429 Hester v Davies (Unreported, WASC, Library No 970721, 18 December 1997) Palfrey v MacPhail [2004] WASCA 257; (2004) 149 A Crim R 542 Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 R v Rowe (1992) 5 WAR 491 Robertson v City of Nunawading [1973] VR 819 Ross v The Queen (1979) 141 CLR 432

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HEYES -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 124 CORAM : STEYTLER P

BUSS JA
MILLER JA

HEARD : 9 APRIL 2008 DELIVERED : 17 JUNE 2008 FILE NO/S : CACR 84 of 2007 BETWEEN : MICHAEL THOMAS HEYES

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

File No : IND 1417 of 2006

Catchwords:

Criminal law - s 32A Misuse of Drugs Act 1981 (WA) - Conviction for serious drug offence - Two previous serious drug offence convictions within 10 years - Drug trafficker declaration - Property confiscation order under s 8 Criminal Property Confiscation Act 2000 (WA)

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Statutes - Interpretation - Taking account of antecedent facts and circumstances - Whether retrospective operation

Criminal law - Summary conviction of an indictable offence - Whether deemed to be a simple offence - Whether a serious drug offence - Palfrey v MacPhail doubted

Statutes - Interpretation - Classification of offences - Crimes and indictable offences - Amendment of legislative scheme - Effect of Criminal Code Amendment Act 2004 (WA)

Legislation:

Crimes (Confiscation of Profits) Act 1988 (WA), s 3, s 6(1)(b)

Criminal Code (Qld), s 659, s 673
Criminal Code (WA), s 1, s 3, s 656A, s 673
Criminal Code Amendment Act 2004 (WA), s 58, sch 3
Criminal Procedure Act 2004 (WA), s 3(1)
Criminal Property Confiscation Act 2000 (WA), s 8
Interpretation Act 1984 (WA), s 37(1)(b), s 67
Misuse of Drugs Act 1981 (WA), s 6, s 7, s 7A, s 9, s 10, s 32A, s 33, s 34

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant : Mr M E Herron
Respondent : Ms J D Whitbread

Solicitors:

Appellant : G A Lacerenza & Associates
Respondent : Director of Public Prosecutions (WA)

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

Beckwith v The Queen (1976) 135 CLR 569
Cheatley v The Queen (1972) 127 CLR 291
Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27
Director of Public Prosecutions v Bridge [2005] WASC 36; (2005) 152 A Crim R 226
Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429
Hester v Davies (Unreported, WASC, Library No 970721, 18 December 1997)
Palfrey v MacPhail [2004] WASCA 257; (2004) 149 A Crim R 542
Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549
R v Rowe (1992) 5 WAR 491
Robertson v City of Nunawading [1973] VR 819
Ross v The Queen (1979) 141 CLR 432


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1 STEYTLER P & BUSS JA: This appeal raises important questions concerning the operation of s 32A(1) of the Misuse of Drugs Act 1981 (WA) (MDA). That section provides that, on the application of the Director of Public Prosecutions (DPP) or a police prosecutor, a court 'shall' declare a person to be a drug trafficker if the conditions of s 32A(1)(a)(i), (ii) or (iii) or of s 32A(1)(b)(i) or (ii) are satisfied. If a declaration is made, s 8 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) applies. That section provides that, when a person is declared to be a drug trafficker under s 32A(1) of the MDA 'as a result of being convicted of a confiscation offence [defined in s 141 of the Confiscation Act as meaning, amongst other things, an offence punishable by imprisonment for 2 years or more] committed after the commencement of this Act', all the property that the person owns or effectively controls at the time of the declaration, and all property that the person gave away before the declaration was made, is confiscated.

2 On 13 June 2007 the appellant was convicted, on indictment, of one count of possessing a prohibited drug (cannabis) with intent to sell or supply. That is an offence under s 6(1)(a) of the MDA. By s 34(2) of the MDA it carries a maximum custodial penalty of 10 years' imprisonment if the offender is sentenced by the District or Supreme Court, or 4 years' imprisonment if the person is sentenced by a summary court.

3 The sentencing judge was satisfied that the conditions of s 32A(1)(a)(i) were satisfied and, on the application of the DPP, he declared the appellant to be a drug trafficker. Because the conviction on 13 June 2007 was for a confiscation offence for the purposes of the Confiscation Act, the declaration had the consequence that all of the appellant's property was confiscated. The appellant has appealed against the making of the declaration. He contends that the sentencing judge erred in finding that the conditions of s 32A(1)(a)(i) of the MDA were satisfied.

Some of the relevant statutory provisions and the 1996 offences

4 So far as it is relevant to this appeal, s 32A(1) provides that:

(1) If a person is convicted of -

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -

(i) serious drug offences;

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…

the court convicting the person of the serious drug offence first referred to in paragraph (a) … shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

5 The offence of which the appellant was convicted on 13 June 2007 was a 'serious drug offence'. Section 32A(3) of the MDA now defines that phrase as meaning, amongst other things, 'a crime under section 6(1)' of the MDA. In 1996, it defined the phrase as meaning 'an indictable offence under section 6(1), 7(1) or 33(2)(a)'. On 29 March 1996, within the period of 10 years referred to in s 32A(1)(a) of the MDA, the appellant had been convicted of two drug offences. The first offence was one of conspiring to possess drugs with intent to sell or supply. That was an 'indictable offence' by virtue of s 33(2)(a) of the MDA. The second, being an offence which is critical to the outcome of this appeal, was one of selling or supplying cannabis. That, too, was an 'indictable offence', s 6(1) of the MDA having provided that 'a person who … sells or supplies … a prohibited drug commits an indictable offence', subject to exceptions that are not presently relevant. However, because that second offence (relevant offence) involved only 56 g of cannabis, it was, by virtue of s 9(2) of the MDA (as it stood in March 1996) triable summarily by a summary court. The expression 'summary court' was then defined in s 3 of the MDA as meaning a 'court of petty sessions constituted by a magistrate sitting alone'. The expression 'indictable offence' was then defined in s 3 of the MDA to mean 'indictable offence under this Act'.

6 Section 9(2) and s 9(3) of the MDA then read as follows:

(2) A person charged with having committed an indictable offence under -

(a) section 6(1) … in respect of a quantity of a prohibited drug referred to in Schedule III which is less than the quantity specified in that Schedule in relation to the prohibited drug [500 grams in the case of cannabis];

…

shall be tried summarily by a summary court, unless the summary court -

(c) at any time considers for any reason that the person so charged should be dealt with on indictment in respect of that indictable offence, in which case the summary court

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shall commit that person for trial or sentence, as the case requires; or

(d) after convicting the person so charged but before passing sentence on him considers for any reason that the sentence which the summary court is empowered to impose on that person is inadequate, in which case the summary court shall commit that person for sentence and shall certify in writing to that effect.

(3) A person who is committed -

(a) for trial under subsection (2)(c) is liable, if convicted; or

(b) for sentence under subsection (2)(c) or (2)(d) is liable,

to be sentenced by the court to which he is so committed, whether or not -

(c) the quantity of the prohibited drug in respect of which he is convicted is less than the quantity specified in Schedule III in relation to that prohibited drug; …

7 Neither s 9(2)(c) nor s 9(2)(d) was applicable. However, the appellant was convicted of, and sentenced for, the relevant offence by the District Court, which relied upon the then provisions of s 656A of the Criminal Code (WA) (Code). So far as it is relevant, that section read as follows:

656A (1) Where a person is convicted of an offence, the court may, in accordance with subsection (2), and if it considers it proper to do so, convict the offender of any other offence to which subsection (2) applies and when passing sentence for the first-mentioned offence sentence the offender for that other offence.

(2) The powers in subsection (1) may be exercised if -


(a) the prosecutor and the offender request the court to do so;

(b) the notice in Schedule I is completed, filed in the court and a copy served on the offender; and

(c) the offence is listed in that notice and the offender pleads guilty to it,

and may be so exercised -

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(d) by the court if it would otherwise have jurisdiction over the offence whether with the consent, or at the election, of the person charged or otherwise; and

(e) in the case of the Supreme Court or the District Court, also in respect of a simple offence.

…

(4) When passing sentence on an offender for a simple offence under subsection (1), the Supreme Court or District Court has the powers of, and is deemed to be, a court of petty sessions or the Children's Court, as the case may require; but any sentence so passed shall for the purposes of appeal be treated as a sentence passed following conviction on indictment.

8 At that time, s 3 of the Code divided offences into three kinds, namely, crimes, misdemeanours and simple offences. Crimes and misdemeanours were indictable offences. However, s 3 went on to provide:

Where for any indictable offence offenders may be punished summarily any court of petty sessions before which a person charged with the offence or which deals with the charge or examines the person charged, or commits him for trial shall be constituted by a magistrate alone, or if there is no magistrate available and the person consents, by two justices.

A person guilty of a simple offence may be summarily convicted by two justices in petty sessions.

An offence not otherwise designated is a simple offence.

9 At that time, the word 'summarily' was defined, in s 1 of the Code, to mean 'before a court of petty sessions' and the words 'summary conviction' were defined to mean 'conviction before a court of petty sessions'.

The sentencing judge's conclusion concerning the s 32A declaration

10 The sentencing judge in the present proceedings was satisfied that each of the offences of which the appellant was convicted on 29 March 1996 was a 'serious drug offence' within s 32A(3) of the MDA. He gave no reasons for that conclusion, but seemingly accepted (ts 26) a submission made by the prosecutor that, in March 1996, s 32A of the MDA contained relevantly identical provisions to those that are currently applicable, save that the phrase 'serious drug offence' was defined to mean 'indictable offence under section 6(1) … ' and that, by virtue of s 656A(4)

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of the Code, the relevant offence was to be treated as if it had been a conviction on indictment. (As will be apparent, s 656A(4) in fact provided only that a 'sentence' passed for a simple offence under s 656A(1) shall 'for the purposes of appeal be treated as a sentence passed following conviction on indictment'.)

Grounds of appeal

11 There are four grounds of appeal. They read as follows:

(1) The learned sentencing Judge erred in law in finding the Appellant had been convicted of two … or more serious drug offences for the purposes of s 32A(1)(a)(i) of the [MDA] in that each of the two convictions in the Perth District Court on 29 March 1996, for conspiring to possess drugs with intent to sell or supply and selling and supplying cannabis, was not 'a crime' and therefore not a 'serious drug offence' pursuant to section 32A(3) MDA.

(2) Alternatively, the learned sentencing Judge erred in law and/or in fact in finding the appellant had been convicted of two … or more serious drug offences for the purposes of s 32A(1)(a)(i) of the MDA in that the conviction on 29 March 1996 in the Perth District Court for selling or supplying cannabis … ('the conviction') was not 'a crime' and was not therefore a 'serious drug offence' pursuant to s 32A(3) MDA.

(3) The learned sentencing Judge should have found that the conviction was a conviction in respect of a simple offence in accordance with a s 656A Criminal Code (repealed) notice and was not a crime because it was not a conviction on indictment of an indictable offence, and was therefore not a serious drug offence as defined by s 32A(3) of the MDA and that s 32A(1)(a) of the MDA was not triggered.

(4) Further or in the alternative the learned sentencing Judge should have found that, based on the facts of the offence outlined by counsel for the State which gave rise to the offence for which the Appellant was convicted (that the Appellant sold 56 grams of cannabis for $900, which was less than the prescribed amount of 500 grams in Item 25 of Schedule III of the MDA), the operation of s 673 of the Criminal Code (repealed) which applied at the time of the conviction deemed the conviction for an offence under s 6(1) of the MDA tried summarily under s 9(2)(a) (repealed) of the MDA to be a conviction for a simple offence, not an indictable offence or a crime, and therefore not a serious drug offence as defined by s 32A(3) of the MDA.

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Ground 1 - 'Crime'

12 Ground 1 arises out of the change to the definition of 'serious drug offence' in s 32A(3) brought about by s 58 and sch 3 of the Criminal Code Amendment Act 2004 (WA). Those provisions deleted the words 'an indictable offence' from the definition and substituted for them the words 'a crime'. Section 6(1) of the MDA was amended in a similar fashion. The appellant contends that the amendment operates only prospectively and that the words 'a crime' do not mean 'an indictable offence'.

13 This construction would have the consequence that no-one could be labelled a drug trafficker under s 32A(1) if one or more of the drug offences occurred prior to 2004, no matter how serious those offences may have been. That could not have been intended.

14 We have said that, in 1996 (and up to the time of the promulgation of the amending Act in 2004), s 3 of the Code classified offences as crimes or misdemeanours (both of which were indictable) or simple offences. The amendment did no more than simplify that classification. Offences were henceforth only of two kinds, being indictable offences and simple offences: s 67(1) of the Interpretation Act 1984 (WA). Section 67(1a) of the Interpretation Act (which counsel for the appellant contends has no retrospective operation) provides that an offence designated as a crime or as a misdemeanour is an indictable offence and s 67(2) provides that an offence not otherwise designated is a simple offence. Section 3(1) of the Criminal Procedure Act 2004 (WA) defines the words 'indictable offence' as meaning (in that Act and unless the contrary intention appears) 'a crime or any other offence described by written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily'. The elements of the offence against s 6(1) never changed. All that changed was the description of the offence as a 'crime' rather than an 'indictable offence'. There is nothing in any of these provisions that could have been intended by Parliament to have the consequence that, from the date of amendment, only offences committed after that date could qualify as serious drug offences for the purposes of a drug trafficking declaration.

15 Contrary to the submission advanced on behalf of the appellant, this last construction of the amending legislation raises no issue of retrospectivity. Any rights or liabilities attaching to the appellant as a consequence of the 1996 convictions were not affected by the amendment. The enactment, as amended, 'merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future': Robertson v

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City of Nunawading [1973] VR 819, 824 (Winneke CJ, Gowans & Starke JJ); and see R v Rowe (1992) 5 WAR 491, 495 - 496 (Franklyn J, Rowland J concurring), 498 (Nicholson J). In Coleman v Shell Co of Australia (1943) 45 SR (NSW) 27, 31, Jordan CJ said:

… as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.

16 Ground 1 consequently fails.

Grounds 2, 3 and 4 - Was the relevant conviction one of an indictable offence?

17 It is convenient to deal with grounds 2, 3 and 4 together. These grounds raise two propositions:

(1) Even if the 1996 conspiracy conviction was in respect of a 'crime' and hence a 'serious drug offence' for the purposes of s 32A(1)(a)(i) of the MDA, the conviction for the relevant offence was not, because it was not a conviction on indictment for an indictable offence.

(2) Alternatively, because the relevant offence involved less than 500 g of cannabis, the effect of the then s 673 of the Code was that the conviction for that offence was deemed to be a conviction of a simple offence and not of an indictable offence or crime.

18 We should reiterate that, under the current regime, a 'crime' is an 'indictable offence': s 67(1a) of the Interpretation Act. It is not an indictable offence that results in a conviction on indictment. We should also reiterate that, in 1996, 'serious drug offence' meant an 'indictable offence under section 6(1) … ' and 'indictable offence' was defined in s 3 of the MDA to mean 'indictable offence under this Act'. In 1996 'serious drug offence' did not mean an indictable offence which results in a conviction on indictment.

19 This brings us to s 673 of the Code. That section provided, in 1996, that:

When a person has been summarily convicted of an indictable offence, the conviction is to be deemed a conviction of a simple offence only, and not of an indictable offence.

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20 Counsel for the appellant contended that this provision applied to s 32A(1) of the MDA, with the result that the appellant's conviction in respect of the relevant offence was deemed, for the purposes of that section, to have been one for a simple offence. That, in turn, was said to have the consequence that it was not a 'serious drug offence' as defined by s 32A(3) in 1996. He contends that the conviction should accordingly not be regarded as a 'crime under s 6(1)' for the purposes of the current definition.

21 Section 673 has been replaced by s 3(5) of the Code. That sub-section provides, relevantly, that:

If a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless … another written law provides otherwise.

22 The former s 673 of the Code has been held to apply to s 32A of the MDA: Palfrey v MacPhail [2004] WASCA 257; (2004) 149 A Crim R 542. In that case the court (Le Miere J, Miller & EM Heenan JJ concurring) applied Hester v Davies (Unreported, WASC, Library No 970721, 18 December 1997). That case, in turn, applied Ross v The Queen (1979) 141 CLR 432.

23 In Ross, the High Court considered s 659 of the Criminal Code (Qld), which was identical to s 673 of the Code. That case concerned a right of appeal to the Court of Criminal Appeal that was granted to persons convicted on indictment, but not to those convicted summarily. Gibbs J (with whom the other judges agreed) said (435) that it appeared from the relevant statutory provision (s 3 of the Criminal Code (Qld)) that, if an offence is a crime or misdemeanour, it is an indictable offence and 'the fact that an offender may be prosecuted or convicted otherwise than upon indictment, pursuant to an express provision permitting that to be done, does not necessarily mean that the offence is not an indictable offence'. He went on to find (437) that it was clear, beyond argument, that a person summarily convicted under the relevant statutory provisions was convicted of an indictable offence.

24 Later in his reasons, Gibbs J referred to the words of s 659 of the Criminal Code (Qld) and said (440) that, if those words were given the fullest operation of which they were capable, they would render the provisions of s 673 of the Criminal Code (Qld) entirely nugatory. Section 673 read as follows:

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A person convicted summarily of an indictable offence may appeal against his conviction and against the sentence passed on his conviction on the same grounds and on the same conditions as if he had been convicted on indictment.

He went on to say (440):

There can be no doubt that the ordinary rules governing the construction of statutes require the provisions of s 659 to be given a construction that will render them harmonious with those of s 673, if that is possible. If the two sections could not both be given effect, s 673, being the later enactment, would prevail. On any view, s 659 cannot be construed as having the effect that a person summarily convicted of an indictable offence is deemed not to have been summarily convicted of such an offence and thereby deprived of the right of appeal which s 673 expressly confers. This does not mean that s 659 itself is deprived of effect; that section has ample room for operation - eg, in cases in which a statute attaches some disqualification or other adverse consequence to a conviction for an indictable offence.

25 In Hester, Steytler J concluded that s 673 of the Code was intended to have a general operation and that it operated in respect of s 6(1)(b) of the Crimes (Confiscation of Profits) Act 1988 (WA). That section provided that, where a person is convicted of a serious offence, an application could be made for a pecuniary penalty order. A 'serious offence' was defined in s 3 of that Act to mean, amongst other things, 'an indictable offence against the laws of Western Australia'. Steytler J found that the Code was not enacted for any limited purpose and was designed to 'declare and consolidate the Criminal Law' in Western Australia (see the Preamble to the Criminal Code Act 1913 (WA)); that the purpose of s 673 was not expressed to be limited; that there was nothing in the terms of that section otherwise to curtail its operation; and, applying (by analogy) the reasoning in Ross, that it must be taken to be intended to have a general operation as regards penal or adverse consequences of the convictions referred to which, although they were convictions of indictable offences, would ordinarily be convictions of offences in the less serious range of that category. There was nothing in the Crimes (Confiscation of Profits) Act which displaced the general operation of s 673 of the Code.

26 Hester was applied by Roberts-Smith J in Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549. That case raised a question whether a declaration under s 32A of the MDA could be made by a court of petty sessions. Roberts-Smith J held that s 673 was a provision of general operation which would only be excluded if there was a clear legislative intent to do so. However, he found that there was such an

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intent in s 32A of the MDA, as it allowed for a 'police prosecutor' to make an application for a drug trafficker declaration. He said that, because prosecuting police officers appeared only in courts of petty sessions, the legislature must be taken to have intended that a drug trafficking declaration could be made with respect to a summary conviction.

27 In Palfrey, the court was concerned with the question whether drug offences committed by the appellant in 1997, which had been dealt with summarily, were 'serious drug offences' for the purposes of s 32A(1). The version of s 32A(3) which then applied was that which still defined 'serious drug offence' as meaning an indictable offence under one or other of the provisions of the MDA referred to (including s 6(1)). Le Miere J referred to what had been said in Hester. He also referred to the decision in Perejmibida. However, the court in Palfrey was directed to a provision of the MDA that had not been considered in Perejmibida. This was s 9(2)(d) (quoted earlier in these reasons). The court held that s 9(2)(d) evinced a legislative intention to displace the operation of s 673 in the limited circumstances that it covered, being circumstances in which a summary court had convicted the person charged but, before sentencing that person, elected to commit him for sentencing to the District or Supreme Court. Where that happened, it was still open to a police prosecutor to make an application to the court of petty sessions (in which the conviction was recorded) to declare the offender to be a drug trafficker. Consequently, the court held [37] that:

[Section] 32A of the MDA should be interpreted so that the operation of s 673 of the Criminal Code is not excluded and a summary conviction for an offence under s 6(1) of the MDA, other than an offence dealt with under s 9(2)(d) of the MDA, is not a serious drug offence.

28 Earlier in his reasons [30] - [32] Le Miere J said

Counsel for the respondent submits that s 32A(3) of the MDA defines 'serious drug offence' to mean an indictable offence under s 6(1), s 7(1) or s 33(2)(a), and that a person convicted of an indictable offence under s 6(1) is convicted of a serious drug offence whether the conviction be on indictment or summary. That is, the relevant criterion for whether a conviction is a conviction of a serious drug offence is whether the offence was an indictable offence under s 6(1) not whether it was tried on indictment or summarily.

However, if the legislature had intended the definition of serious drug offence to refer to any offence under, relevantly, s 6(1), whether tried on indictment or summarily, then one may have expected the definition of serious drug offence to refer simply to an offence under s 6(1). The reference to an indictable offence under s 6(1) tends to suggest that not all

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offences under s 6(1) fall within the definition of serious drug offence. That consideration supports the construction advanced by the appellant, that is a conviction of an indictable offence under s 6(1) does not include a summary conviction for an offence under s 6(1) that is deemed by s 673 of the Criminal Code to be a conviction for a simple offence, other than where the person is committed to the District Court for sentencing pursuant to s 9(2)(d) of the MDA.

In my view, a purely textual analysis of s 32A of the MDA does not lead to the conclusion that the operation of s 673 of the Criminal Code to the provisions of s 32A(1) of the MDA has been excluded. In those circumstances, the principles of statutory construction referred to by Roberts-Smith J in Perejmibida lead to the conclusion that the Court should find that the operation of s 673 of the Criminal Code has not been excluded.

29 Le Miere J also said [34] that statutory provisions dealing with the confiscation of property in connection with criminal activity had been equated with penal provisions and that any ambiguity was therefore to be construed in favour of the owner of the property. He referred, in that respect, to Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429, 433 (sic, seemingly a reference to page 437 of the dissenting judgment of Menzies J) and Cheatley v The Queen (1972) 127 CLR 291. (See also Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J); and Director of Public Prosecutions v Bridge [2005] WASC 36; (2005) 152 A Crim R 226 [16] (McLure J).) Le Miere J also said that, where competing interpretations are open, the court should have regard to the consequences of those interpretations and that the interpretation advanced by the respondent would lead to extraordinary and draconian results.

30 However, there seems to us to be an insuperable difficulty with the line of argument advanced on behalf of the appellant in reliance upon Palfrey (and with a further argument, also put on behalf of the appellant, questioning the jurisdiction of the District Court, in 1996, to enter a conviction in circumstances in which s 9(2)(a) of the MDA applied but in which neither of s 9(2)(c) or s 9(2)(d) was applicable). The argument relies upon legislative provisions that seem to us to be unambiguous, even if (which we respectfully doubt) that was not the case before the 2004 amendments.

31 The current legislation requires a court, convicting a person of a serious drug offence, on the application of the DPP or a police prosecutor to declare the person to be a drug trafficker if that person has, during the specified period, been convicted of two or more serious drug offences. A 'crime under section 6(1)' is a 'serious drug offence' and, in 1996, 'an

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indictable offence under s 6(1)' was a 'serious drug offence'. The offences of which the appellant was convicted in 1996, including the relevant offence, are now expressly categorised as crimes under s 6(1) and were, in 1996, expressly said to be indictable offences under s 6(1). Notwithstanding what was said in Palfrey, it seems to us to be untenable to suggest that this categorisation has been altered by the fact that 'crimes' (which are indictable by virtue of s 67(1a) of the Interpretation Act) or (as the position stood in 1996) 'indictable offences' might, when s 9(2)(a) of the MDA applies, be tried summarily by a magistrate. Nor, in our opinion, is it tenable to suggest that the categorisation is affected by the fact that s 3(5) of the Code (which is different in its terms from s 673) provides that, if a person is convicted by a court of summary jurisdiction of an indictable offence, the conviction is to be regarded as being a conviction of a simple offence only, unless another written law provides otherwise. The fact remains that, by virtue of the current provisions of s 6(1), an offence under that section is 'a crime' (and, if it matters, 'indictable' by virtue of s 67(1a) of the Interpretation Act). Also, an offence of that kind was, by virtue of the former provisions of s 6(1), 'an indictable offence'. In either case this is so regardless of whether the offender is or is not convicted by a court of summary jurisdiction. The MDA is consequently a law that does provide 'otherwise' for the purposes of s 3(5) of the Code.

32 Counsel for the appellant sought to bolster his argument in this respect by resort to s 37(1)(b) of the Interpretation Act, which provides that, where a written law repeals an enactment, the repeal does not, unless the contrary intention appears, affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment. However, that provision seems to us to be irrelevant for present purposes. As we have said, the amendments do not affect the previous operation of any repealed enactment. They merely provide for the consequences which are to follow, henceforth, from a third conviction (in the future) of the kind described where two similar convictions have been recorded in the specified 10-year period: Rowe, 495 - 496, 498.

33 This construction of s 32A is consistent with s 34(2) of the MDA, mentioned earlier in these reasons. Section 34(2) provides that a person who is convicted of 'a crime' referred to in s 34(1)(a) (which, as we have said, includes a crime under s 6(1)) is liable, if sentenced by summary court, to a term of imprisonment not exceeding 4 years. That sub-section contemplates that 'a crime' will still be such even if the offender has been sentenced by a summary court. Section 34(2) has not

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been materially amended since 1996, save that the words 'a crime' have been substituted for 'an indictable offence'.

34 Our preferred construction of s 32A is also consistent with s 10 of the MDA. That section (which, again, has not been materially amended since 1996, save for the substitution earlier referred to) provides, in sub-section (a), that a court trying a person charged with having committed a crime under s 6(1)

may, if the evidence does not establish that that person is guilty of that crime but does establish that he is guilty of a simple offence under section 6(2) [which provides, subject to exceptions that are not presently relevant, that a person who has in his possession or uses a prohibited drug commits a simple offence]; …

…

convict him of having committed that simple offence …

This section contemplates that an offence under s 6(1) will always be an indictable offence (as all 'crimes' are), but that, where the indictable offence (or 'crime') is not proved, but a simple offence under s 6(2) is proved, the court may convict the person of that simple offence.

35 Finally, the construction we prefer is consistent with the scheme of the relevant provisions of the Act and with the evident legislative intention, which have not materially altered since 1996.

36 Section 6 of the MDA distinguishes between offences involving one or more of the elements of intent to sell or supply, manufacture or preparation of, sale or supply of, or offering to sell or supply a prohibited drug, on the one hand (s 6(1)), and offences involving only possession or use of a prohibited drug, on the other (s 6(2)). Only offences in the first category (s 6(1)) amount to 'crimes'. That, no doubt, is because they involve the more serious aspect of dealing in (or intention to deal in), or manufacture or preparation of, a prohibited drug. Less serious offences falling within the second category (s 6(2)) are 'simple' offences. Section 9(2) of the MDA contemplates that, although offences in the first category are crimes, and hence indictable (s 67(1a) of the Interpretation Act), they might be tried before a court of summary jurisdiction when the quantity of the prohibited drug is less than that specified in sch III.

37 Section 9(2) also contemplates that other less serious offences might be tried before a court of summary jurisdiction. These include offences under s 7(1) (being the 'crime' of possession or cultivation of a prohibited plant with intent to sell or supply it, or any prohibited drug obtainable

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from it, and the 'crime' of selling or supplying, or offering to sell or supply, a prohibited plant) where those offences involve a number of plants less than that specified in sch IV. They also include an offence under s 7A(1) (the 'indictable offence' of selling or supplying, or offering to sell or supply, anything that the person knows will be used to cultivate a prohibited plant contrary to s 7(1) or s 7(2) by hydroponic means). Section 7A(1) was introduced in 2003 but was not amended by the 2004 amendments.

38 In the case of any of the offences contemplated by s 9(2) (other than one of conspiracy to commit an offence of the kind there described), the summary conviction penalty is that set out in s 34(2)(b) of the MDA (referred to earlier in these reasons). However, the offences maintain their categorisation as 'crimes', in the case of offences under s 6(1) or s 7(1), or as 'indictable' offences, in the case of offences under s 7A(1). As we have said, only those categorised as 'crimes' (because of their intrinsically more serious character) will be 'serious drug offences' for the purposes of enabling a declaration under s 32A(1) of the MDA. They are categorised as 'crimes' (and hence as 'serious drug offences') regardless of where they might be tried (this last issue depending upon the degree of seriousness of those offences that are intrinsically serious enough to be categorised as 'crimes'). Conversely, an offence under s 7A(1) is not a 'crime', and hence a 'serious drug offence', even though it is indictable.

39 It may be significant that the court, in Palfrey, did not refer to either s 34(2) or s 10 of the Act in its analysis of the legislative scheme.

40 Grounds 2, 3 and 4 have not been made out.

Conclusion

41 We would dismiss the appeal.

42 MILLER JA: I have had the opportunity of reading in draft the reasons for judgment of Steytler P and Buss JA. I agree with those reasons.

43 In Palfrey v MacPhail [2004] WASCA 257; (2004) 149 A Crim R 542, I agreed with Le Miere J that the former s 673 of the Criminal Code applied to s 32A of the Misuse of Drugs Act 1981 (WA) (MDA). Le Miere J considered that an analysis of s 32A of the MDA did not lead to the conclusion that the operation of s 673 of the Criminal Code to the provisions of s 32A(1) of the MDA had been excluded. Accordingly, a conviction of an indictable offence under s 6(1) of the MDA did not include a summary conviction for an offence under s 6(1) that was

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deemed by s 673 of the Criminal Code to be a conviction for a simple offence, unless the person was committed to the District Court for sentencing pursuant to s 9(2)(d) of the MDA.

44 I now have reservations about having agreed with the reasoning of Le Miere J in Palfrey v MacPhail. I agree with the observations of Steytler P and Buss JA about the case and now consider that it is doubtful authority. In any event, the reasoning relies upon legislative provisions that no longer apply. I am satisfied that, as at 2007, the relevant provisions of the MDA are unambiguous and:

(1) a 'crime under s 6(1)' is a serious drug offence;

(2) the offences of which the appellant was convicted in the present case are crimes within the meaning of s 6(1); and

(3) a conviction by a court of summary jurisdiction of an indictable offence may, by reason of s 3(5) of the Criminal Code, mean that the conviction is to be regarded as a conviction of a simple offence only, but the conviction remains by reason of s 6(1) of the MDA a conviction for the commission of a crime.