Humphry v The Queen - [2003] WASCA 53

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: HUMPHRY -v- THE QUEEN [2003] WASCA 53

CORAM: MALCOLM CJ
ANDERSON J
MILLER J

HEARD: 5 FEBRUARY 2003

DELIVERED : 26 MARCH 2003

FILE NO/S: CCA 42 of 2002
CCA 47 of 2002

BETWEEN: PAUL KIMBERLY HUMPHRY
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law - Appeal against conviction - Accused charged with procuring principal offender to possess drug with intent to supply drug to the accused - Whether sufficient evidence to give rise to inference that accused procured and had relevant mens rea

Criminal law and procedure - Drug offences - Whether sentence of 31/2 years was manifestly excessive in circumstances - Turns on own facts

Legislation:

Criminal Code, s 7, s 9

Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Appeal against conviction dismissed
Appeal against sentence dismissed

Category: A

Representation:

Counsel:

Appellant: Mr T R Stephenson
Respondent: Mr K P Bates

Solicitors:

Appellant: T R Stephenson
Respondent: State Director of Public Prosecutions

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

Barca v The Queen (1975) 133 CLR 82
Borg v The Queen [1972] WAR 194
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Edwards v The Queen (1993) 178 CLR 193
Mallan v Lee (1949) 80 CLR 198
Peacock v The King (1911) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
R v Lopuszynski [1971] QWN 33
R v Maroney [2002] 1 Qd R 285
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Stuart v The Queen (1974) 134 CLR 426
Thomas v The Queen (1960) 102 CLR 584
West v Suzuka [1964] WAR 112
Wilson v Dobra (1955) 57 WALR 95

Case(s) also cited:

Nil

MALCOLM CJ: This is an appeal against conviction. The appellant has also made an application for leave to appeal against sentence. The appellant was convicted after trial in the District Court at Perth on 26 February 2002 of an offence under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), namely, that between 8 and 11 August 1999 at Perth and other places, he procured Garry James Witherdin to have in his possession a prohibited drug, namely, heroin, with intent to supply it to himself, namely, the appellant.

Appeal Against Conviction

The grounds of appeal in the original notice of appeal dated 19 March 2002 were abandoned at the hearing on 5 February 2003 and with the leave of the Court substituted by the following grounds:
"(i)that the evidence, and, all appropriate inferences that can be drawn from it, was insufficient to prove guilt, in that, the Crown did not negative the proposition that, even though [the applicant] admitted he had purchased the heroin (from an undisclosed source) for his own use, another person may have chosen [Witherdin] to act as the 'courier' of the heroin and informed [the applicant] of such, and, that this 'innocent' proposition/explanation arises as equally from the proven facts as any inference of guilt; and/or
(ii)that [the applicant] did not have the relevant mens rea to commit the offence as charged since, it was, inter alia, necessary for the Crown to prove, beyond reasonable doubt, which it failed to do, that [the applicant] intended that [Witherdin] acquire the possession of the heroin, and, that [Witherdin's] possession of the heroin was for the purpose of a 'supply' of it to [the applicant]; and/or
(iii)properly construed, s 7 of the Criminal Code does not apply to create the offence with which the Appellant was charged pursuant to the Misuse of Drugs Act 1981 that is, there is no such offence known to the law."

The Case Against the Appellant

It is convenient first to state the case against the appellant. Mr Witherdin was not called as a witness at the trial by the Crown or the appellant. There was an alternative case left to the jury, namely, that the appellant procured Witherdin to possess heroin, but the appellant's counsel conceded that, while this was said to be incorrect, nothing turned on it for the purposes of the appeal against conviction.
The Crown conceded at the trial that the case against the appellant was circumstantial. It was submitted on behalf of the appellant that there was no direct evidence of any procurement by the appellant of Witherdin to possess heroin, or supply it to the appellant. On behalf of the appellant, it was submitted that the evidence at the trial was capable of proving the following facts beyond reasonable doubt:
(1)The appellant had spoken to Witherdin the day before the latter came to Perth, but there was no evidence about the contents of the conversation, apart from the fact that the contact had been by means of a mobile telephone to which the appellant had access.
(2)The appellant had been in Sydney and given Witherdin his keycard and personal identification number (PIN) the day before Witherdin had come to Perth and at 12.30 am on that day, Witherdin had used the card to obtain the sum of $400 which the appellant said was a loan he had made to Witherdin.
(3)The appellant contended that there was no evidence that the money was given to Witherdin for any other purpose.
(4)The appellant had paid a supplier of heroin in Sydney $7000 to purchase a quantity of heroin for his own use, but the supplier was not identified.
(5)The appellant thought he had 20 g of heroin in his back pocket when arrested by police at his home in Dalkeith, although by that time the heroin had been substituted by another substance, which police found at the appellant's house after getting Witherdin to take it there.
(6)The appellant and his de facto partner had been worried that Witherdin had not arrived and thought that something must have happened to him.
(7)Witherdin said he had been carrying something in his pants for the duration of his trip from Sydney and he had just taken it out of there. The police identified a "dummy" package which they had given to Witherdin, but not where he had put it.
The learned trial Judge directed the jury to the effect that "procure" meant to produce by endeavour, and that one procured a thing by setting out to see that it happened. The jury were directed that in order to convict the appellant, they had to be satisfied beyond a reasonable doubt that Witherdin was in possession of the heroin at the request of the appellant and that Witherdin had the intention of supplying it to the appellant. It was accepted by counsel for the appellant before this Court that these were correct directions.

Ground (i)

It was contended in support of ground (i) that the fact that the appellant knew that the heroin was coming to him and that Witherdin was bringing it, did not prove directly or indirectly that it was the appellant who involved Witherdin in the transaction. It was also contended that the fact that the appellant was concerned that Witherdin had not arrived at his home in Dalkeith, following his arrival in Perth, could not be regarded as evidence that it was the appellant who arranged for Witherdin to act as a courier. It was submitted that there was an alternative explanation, namely, that the appellant had admittedly paid $7000 to a supplier in Sydney for heroin, which had not been delivered as expected. Consequently, the appellant had good reason to be concerned.
The essence of the ground as argued is that there was insufficient evidence before the jury to enable a finding that it was established beyond a reasonable doubt that the appellant had procured Witherdin to act as a courier to bring the heroin to him in Perth. In other words, that the evidence did not exclude beyond reasonable doubt the possibility that Witherdin had been asked by a third party to act as a courier to bring the heroin from Sydney and deliver it to the appellant.
There was a search of the appellant's house by police, which was recorded on video. In the course of the search, it was found that the appellant was recorded as having telephoned Mr Witherdin on a particular telephone number and that telephone number was recorded on two pieces of paper found at the scene of the search.
The appellant was found to have some white powder in a packet in the back of his jeans. He admitted that the white powder belonged to him and that he had bought it the day before the search for $7000. He said it was heroin for his own use. He also told the police that he had given Witherdin his keycard and PIN so that the latter could withdraw $400 from the appellant's account at the Commonwealth Bank. The jury were invited to infer that this must have occurred in Sydney as the appellant said he was not in Perth on 9 August, being the day prior to the search at the appellant's house on 10 August. In addition, Witherdin had been in Sydney at the time when he was given the keycard and PIN by the appellant.
Witherdin had been intercepted by police on his arrival at Perth Airport from Sydney on 10 August 1999 and a package of heroin was seized from him. The quantity was 26.4 grams. Witherdin was in possession of a bank keycard belonging to the appellant as well as a withdrawal slip from an automatic teller machine, commonly known as an "ATM". The slip indicated a withdrawal made by him using the appellant's keycard from an ATM in Strawberry Hills, Sydney, shortly after midnight on 10 August. Witherdin also had in his possession a note with handwriting on it, including the figure "$400.00" and a PIN. The PIN was for a bank account in the name of the appellant.
Having been apprehended and questioned by police, Mr Witherdin agreed to go through with the delivery on the basis that the heroin would be substituted by a white powder. The heroin was then substituted by police with another white powder and Witherdin agreed to go to the appellant's house wearing a recording device. The heroin was substituted by a white powder, namely, plaster of Paris. The jury were invited to find on the evidence that the voices on the tape were the voices of Witherdin, the appellant and his female partner.
On the tape, Witherdin is recorded as saying:
"[T]here it is, let's have something."
This was said to be a reference to the heroin. The appellant was recorded as saying how worried they were about Witherdin being late, giving rise to the inference that he had been expected to come earlier from the airport to the house. Witherdin also asked the appellant, "When did you get back?" The appellant replied, "Last night." This evidence was the basis for the Crown to invite the jury to infer that this was a reference to the fact that the appellant had been in Sydney the day before.
During the same conversation, Witherdin asked the appellant how much of the drug was in the packet. The appellant replied that there should be 28 grams. In fact, the precise weight of the heroin seized by the police was 26.4 grams. The jury were invited to infer from this evidence that the heroin brought to Western Australia by Witherdin belonged to the appellant, because he knew the approximate weight and was expecting it.
There was also a reference to "picks" in the conversation between the three persons in the house and there was evidence that this was a reference to equipment used when taking or administering the drug.
The critical question on the appeal is whether the Crown case was sufficiently strong to exclude the possibility that a third party procured Witherdin to act as courier to bring the heroin from Sydney to Perth and deliver it to the appellant.
The Crown case was that Witherdin bought the heroin to Western Australia from Sydney at the request of the appellant. It was also the Crown case that the relevant request was made by the appellant by telephone to Sydney, or face to face in Sydney, after the appellant had purchased the heroin in Sydney for the sum of $7000. In this context, the learned Judge directed the jury that:
"What the crown allege is that Mr Witherdin had the heroin in his possession; that is, physically on him and under his control, and they further allege that at the time Mr Witherdin possessed that drug he had the intention of supplying or giving or delivering it to the accused. Now, I mentioned the Misuse of Drugs Act and that's helpful in relation to this question of the concept of possession and supply.
It says, 'To possess' – and remember we are speaking of Mr Witherdin allegedly possessing a quantity of heroin -
'To possess includes to control or have dominion over and to have the order of disposition of and inflections and derivatives of the verb to possess have correlative meanings.'
So they say that Mr Witherdin possessed the quantity of heroin found wrapped up in a package tucked down his underpants.
Now the same Misuse of Drugs Act talks about what 'to supply' means. Remember, it is said that Mr Witherdin had that drug or possessed that drug with the intention of supplying it to the accused and the Misuse of Drugs Act relevant to supply says that this concept includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.
So the crown must prove that Mr Witherdin, first of all, possessed this drug. They must prove that it was heroin and they must prove that he had the intention of supplying [it] to the accused. Intention is not defined in our law as such and in fact the crown can't come along and, as they do with photographs for example, put someone's intention before you by way of a physical exhibit because it's an intangible thing. The intention of Mr Witherdin, as I have said, is not an exhibit or a physical object. His intention, whatever it was if it existed, must be inferred from what the evidence reveals about what Mr Witherdin said or did and what occurred relevant to Mr Witherdin's arrival here and subsequently in his dealings with the accused man.
If you were satisfied as to these matters with respect to Mr Witherdin's alleged role in this matter then he, that is Mr Witherdin, would have committed an offence of the type alleged. In other words, possessing a quantity of prohibited drug, namely heroin with intent to sell or supply to the accused.
So you may ask how can the accused be charged with this offence and because you will understand that he is not charged himself with possessing heroin with intent to supply it to himself but rather he is charged with procuring Mr Witherdin to do this."
Her Honour then referred to s 7 of the Criminal Code which provides that:
"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence."
The learned Judge then directed the jury that:
"… relevantly here in this case this is what you will be concerned with: 'Any person who counsels or' – relevantly here – 'procures any other person to commit the offence'. In the fourth case, that's the case I've just been talking about, the procuring, he may be charged either himself with committing the offence or with counselling or procuring its commission. That's what has happened here. The accused is charged with procuring the commission of this particular offence.
So that is how it comes to be that Mr Humphry is charged. Here the crown allege that Mr Humphry has committed this offence in that particular way because he has procured Mr Witherdin to commit the offence in the first instance. Now, procured is defined in the standard Oxford Dictionary as to mean this: '[t]o bring about by care, also to bring about, to cause, to effect, to produce, to prevail upon, to induce or persuade a person, in this case being a reference to Mr Witherdin to do something'.
To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. So the crown must prove beyond a reasonable doubt that the accused procured Mr Witherdin, in the way that I have explained what procured means, to do what Mr Witherdin allegedly did. In other words, that Mr Witherdin was to be in possession of a quantity of heroin at the request of the accused and bring it over to Western Australia with the intention of supplying or delivering it to the accused."
The jury were also directed that the Crown had to prove that Witherdin possessed the heroin, namely, that he had it under his control or had dominion over it; that he brought or transported the heroin to Western Australia at the request of the appellant; and that in coming to Western Australia with the heroin he was in fact intending to deliver it to the appellant. As her Honour also put it, the Crown had to prove that:
"[Witherdin] was pursuant to [the appellant's] request carrying out the role of a delivery person. The crown must prove that Mr Witherdin intended to supply the heroin to the [appellant]. Now, that is the case even though due to the police substitution it was not really heroin that was handed over or allegedly handed over by Mr Witherdin to the accused but it is Mr Witherdin's intention to actually supply or give or deliver the heroin to the accused that you are concerned with in that context."
The jury were also told that:
"If you were satisfied beyond a reasonable doubt that Mr Witherdin possessed a quantity of heroin, but you were not satisfied that Mr Witherdin had the intention to supply it to the [appellant] then Mr Witherdin would have committed the offence of possession of a prohibited drug, namely, heroin without the intention of supplying it to another. If relevant to this offence you were also satisfied that the [appellant] procured Mr Witherdin to possess heroin without the intent on Mr Witherdin's part to deliver or provide or supply it to the [appellant] then it would be open to you to find that the [appellant] was guilty of the alternative charge on the indictment of procuring Mr Witherdin to possess a quantity of heroin without that aspect of having the intention of supplying it to the [appellant].
Now by consent, that is, agreement between counsel[,] you heard the statement of Detective Bryson read into evidence. He was present at the airport when Mr Witherdin was searched and he kept a record of what happened there. He took possession of a package containing heroin, an airline ticket and boarding pass both in Mr Witherdin's name, a Commonwealth Bank keycard in the name of the [appellant] P.K. Humphry and an automatic teller receipt from the Commonwealth Bank dated 10 August 1999 and a small piece of paper with the words '8798 okay, savings $400' …
At Detective Dorosz's direction, Detective Bryson made up a substitute package of heroin to look like and appear very similar to the one that had been seized from Mr Witherdin. You have a photograph of those two packages for comparison. At the house when the police went there and carried out a search with the search warrant Detective Bryson remained what is called the exhibit officer and he recorded the seizure of the package of the substituted heroin, if I can describe it that way, which we all know was plaster of Paris, and another small package of heroin which I touched on before; a white napkin with the phone number 9310‑5167 and another piece of paper elsewhere in the house with the exact same phone number but it had the prefix (02)."
There was also evidence from an officer of the Commonwealth Bank who produced a bank statement of an account in the name of the [appellant] which had his address at 29 Circe Circle in Dalkeith on it.
"The account related to a keycard savings account which could be operated on through an ATM. The number of the bank statement matched the keycard number and the statement showed a withdrawal of $400 from the [appellant's] account on 10 August 1999 at a branch of the Commonwealth Bank in Strawberry Hills, New South Wales. There was a receipt issued on that date for the $400 withdrawal from the [appellant's] account and that the withdrawal occurred about 3 minutes past midnight on that date."

The police dropped Mr Witherdin off near the appellant's house. Mr Witherdin then activated the recording device he was wearing and went into the house. Some 5 minutes later the police armed with their search warrant went into the house. The persons in the house were Mr Witherdin, the appellant, his female partner and two small children. The substitute package of heroin was found in, and removed from, a rear pocket of the jeans which were worn by the appellant. This was recorded on video. There was a diary found on a desk, on one page of which there was a telephone number that matched the telephone number on a napkin which was found on the appellant's person.
The appellant then accompanied the police officers to their office where he agreed to participate in a videotaped record of interview. The video was not introduced into evidence.
The appellant told the police that he agreed that they had found a packet of heroin in his back pocket which he estimated was roughly 20 grams in weight. He admitted that it was his drug for his own personal use and that he had paid $7000 for it; that a keycard shown to him was his and that Mr Witherdin would have had it. He only knew Mr Witherdin as "Will" or "Willie" and that he was the person in the Dalkeith house at the time of the police raid. He admitted that Witherdin had taken possession of the keycard the day before (9 August 2001); that the PIN was his PIN and that he had given the card to Witherdin so that he could lend him $400. He told him he had telephoned his number in Sydney the day before, late in the afternoon, and told Witherdin that he could take $400 out of his account and that was why Mr Witherdin had both the keycard and the PIN. He agreed that Mr Witherdin was not in Perth on the previous day, namely, 9 August 2001.
Detective Dorosz said that he had checked Mr Witherdin's telephone number and the appellant's mobile telephone, which was registered in his partner's name and that there was no material to show that there had been a connection between the two numbers. However, he did find that Mr Witherdin's telephone number matched the telephone numbers written down on the white napkin found in the possession of the appellant and that it related to an address for a unit in Redfern, a suburb in Sydney.
In my opinion, the circumstantial evidence against the appellant was strong. The starting point was that the courier had in his possession the appellant's keycard and his PIN which he had used to draw out a certain amount of cash. The appellant admitted that he had given Mr Witherdin the keycard. Witherdin arrived at the appellant's house with what the appellant thought was heroin. The appellant took delivery of what he believed was the heroin and there was a conversation giving rise to a clear inference that the appellant had been expecting Mr Witherdin. The inference that the appellant paid Witherdin $400 to bring the heroin from Sydney to Perth and deliver it to him is compelling.
In this respect, it was contended by counsel for the appellant that it was critical that the person from whom the appellant actually purchased the drugs was never identified. It was submitted that in the absence of evidence, the purpose of the $400 was not proved. In my opinion, however, there was other evidence and, as counsel for the appellant conceded, it was common ground at the trial that the appellant had already parted with $7000 as the purchase price of the drug prior to Mr Witherdin's involvement. The jury knew that, and they also knew that, having purchased the heroin, the appellant was waiting for it to be delivered to him. The delivery was in fact made by Mr Witherdin who had been supplied with the appellant's keycard and PIN so as to enable him to draw out $400 from the appellant's bank account.
It was contended on behalf of the appellant that it was equally open on the evidence to infer that the appellant did not involve Mr Witherdin. This was described by counsel for the appellant as "the critical matter upon which all of this turns". It was conceded that the learned trial Judge correctly directed the jury to the effect that in order to reach a verdict of guilty, they would have to find that Mr Witherdin was in possession of the heroin for no other reason than at the request of the appellant.
In other words, it was being contended that it was not open to the jury, on the evidence which was put forward, to be satisfied beyond a reasonable doubt that there had been any request made or any step taken by the appellant to procure Mr Witherdin to obtain and supply him with the heroin and, in that connection, to obtain money from the appellant's bank account by providing him with his keycard and PIN.
In my opinion, in these circumstances, the inference that Witherdin obtained delivery of the heroin to himself on the appellant's behalf and was paid $400 by the appellant for acting as a courier was compelling. There was no basis in the evidence giving rise to a reasonable hypothesis that Witherdin was acting as a delivery courier at the request of the supplier of the heroin. The person from whom the appellant actually purchased the drugs was never identified. The possibility that Witherdin may have been paid by the supplier to deliver the heroin had no foundation at all in the evidence. Consequently, the possibility that Witherdin was making the delivery as agent for the supplier of the heroin had no foundation in the evidence. The possibility was a matter of mere speculation.
In my opinion, notwithstanding the concession by the Crown at the trial that it did not produce evidence of an express or actual request by the appellant to Mr Witherdin, there was, in my opinion, sufficient evidence which would justify the jury concluding beyond a reasonable doubt that Mr Witherdin had been paid $400 by the appellant to collect the heroin from the supplier and deliver it to the appellant at his house in Dalkeith. The question is whether that was the only reasonable inference that could be drawn from the facts proved: Barca v The Queen (1975) 133 CLR 82 at 104 per Gibbs, Stephen and Mason JJ. In a case which rests substantially on circumstantial evidence, a jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v The King (1911) 13 CLR 619 at 634. The inference of guilt must be "the only rational inference": Plomp v The Queen (1963) 110 CLR 234 at 252; Thomas v The Queen (1960) 102 CLR 584 at 605 – 606, and Chamberlain v The Queen (No 2) (1984) 153 CLR 521. For an inference to be rational, it must rest upon something more than mere conjecture. As their Honours said in Barca at 104:
" … an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence (Peacock v The King (supra)). These principles are well settled in Australia."
See also Shepherd v The Queen (No 5) (1990) 170 CLR 573 per Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed); Edwards v The Queen (1993) 178 CLR 193 at 210 per Deane, Dawson and Gaudron JJ.
In my opinion, on the facts which had been proved in evidence, the jury were entitled to conclude that the appellant had purchased a quantity of heroin in Sydney for $7000, and that he did not wish to bring it to Western Australia himself, but had paid Witherdin to do it.
Counsel for the appellant sought to argue that an alternative inference was open that somebody else was involved. In my opinion, it is significant that Witherdin had been in Sydney and had admittedly paid $7000 to the supplier to purchase the heroin. It was proved beyond a reasonable doubt that the appellant was requested to deliver the heroin to the appellant. The appellant returned to Western Australia having given his keycard and PIN to Witherdin who drew out an amount of $400.
In my opinion, absent any other explanation from the appellant, the jury were entitled to infer that either through the agency of the heroin supplier or through Witherdin, the heroin was going to be brought to Perth to be delivered to him. The transaction involving the keycard and the withdrawal of the $400 by Witherdin suggested strongly that the link between him as courier and the appellant was forged by the appellant to the exclusion of anyone else. There was no evidence whatsoever to support the speculative alternative upon which the appellant sought to rely. If the appellant had arranged someone else to deliver the heroin or had left it to the supplier to arrange it, any such hypothesis would be inconsistent with the established fact that the appellant paid Mr Witherdin the sum of $400 and the further fact that Mr Witherdin delivered the heroin to him.
In my opinion, ground (i) fails.

Ground (ii)

It was contended in support of ground (ii) that the appellant did not have the relevant intention to commit the offence because the Crown failed to prove beyond reasonable doubt that the appellant intended that Witherdin acquired possession of the heroin for the purpose of supplying it to him.
In my opinion, it follows from the conclusion reached in relation to ground (i) that ground (ii) must also fail.

Ground (iii)

The issue raised by ground (iii) is whether, properly construed, s 7 of the Criminal Code does not apply to create the offence with which the appellant was charged pursuant to the Misuse of Drugs Act, namely, that between 8 and 11 August 1999 at Perth and other places, the appellant procured Mr Witherdin to have in his possession a prohibited drug, namely, heroin with intent to supply it to himself, namely, the appellant.
Section 6(1)(a) of the Misuse of Drugs Act relevantly provides that:
"Subject to subsection (3), a person who —
(a)with intent to sell or supply it to another, has in his possession;
…
a prohibited drug commits an indictable offence, except when he is authorised by or under this Act or by or under the Poisons Act 1964 to do so and does so in accordance with that authority."
No question of any relevant authority arises in this case.
Section 7 of the Criminal Code relevantly provides that:
"When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say —
…
(d)Any person who counsels or procures any other person to commit the offence."
It is also provided that in the latter case, the relevant person may be charged either with himself committing the offence or with counselling or procuring its commission.
Section 7 also provides that:
"A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence."
The words "[w]hen an offence is committed … " do not require that the principal offender be convicted before another may be found liable as a party to the offence: R v Lopuszynski [1971] QWN 33. It is sufficient that the commission of an offence by someone is established in the case against the alleged accessary, namely, the appellant.
In Wilson v Dobra(1955) 57 WALR 95, it was held that s 7 of the Criminal Code has general application to all offences punishable by the criminal law of Western Australia in whatever Court triable. Further, the operation of s 7 is not confined to offences created by the Criminal Code: West v Suzuka [1964] WAR 112. In Stuart v The Queen (1974) 134 CLR 426, which was followed and applied by this Court in Borg v The Queen [1972] WAR 194, it was held that a person who counsels or procures another to commit an offence is guilty of the principal offence if it is committed.
It was recognised by Dixon J (as he then was) in Mallan v Lee (1949) 80 CLR 198 at 216 that there may be cases in which the language of the statute creating an offence excludes the application of provisions relating to aiding and abetting by reason of the value of the offence. In my opinion, this is not one of them.
Section 9 of the Code provides, in substance, that when a person counsels or procures another to commit an offence, it is immaterial whether the offence committed is committed in the way contemplated, provided that the facts constituting the offence charged are a probable consequence of carrying out the counselling or procuring.
In this context, ss 7 and 9 of the Criminal Code (Qld) are in the same terms as in the Criminal Code of this State. In R v Maroney [2002] 1 Qd R 285, the Queensland Court of Appeal was called upon to consider the application of s 7 of the Criminal Code (Qld) in the context of s 6 of the Drugs Misuse Act 1986 (Qld) which relevantly provides that:
"A person who unlawfully supplies a dangerous drug to another … is guilty of a crime."
In Maroney (supra), the appellant was a prisoner. He arranged for a person to obtain heroin and supply it to a woman who would give it to him in prison. The woman obtained the drug as arranged, but she was intercepted when she visited the prison and the heroin was seized. The appellant was convicted on the basis that he had counselled or procured the other two involved to commit the offence of supplying the drug to him. The indictment alleged that the appellant and the two others supplied heroin to another. It was contended before the Court of Criminal Appeal that a person could not be convicted of supplying a drug to himself. Davies JA (with whom McPherson JA agreed) held that it was appropriate for the indictment to charge the offence as it did. While the appellant counselled or procured the other two to supply the drug to him, s 7 provided that in such circumstances, the appellant was deemed to have taken part in the offence of supplying the drug to himself, and to be guilty of supplying the drug to another: see per Davies JA at [1] – [10] and McPherson JA at [19] – [23].
In my opinion, the present case is a clear example of a simple procuring by the appellant of Witherdin to commit an offence, namely, to obtain possession of a quantity of heroin and supply it to the appellant. In this case, there was sufficient evidence which entitled the jury to conclude beyond reasonable doubt that the appellant asked or requested Witherdin to take delivery of the heroin in Sydney for which the appellant had paid the supplier, bring it to Perth and deliver it to the appellant. This necessarily required Witherdin to obtain possession of the heroin with the intention of supplying to the appellant which he did. Hence, the appellant was clearly an accessary to Witherdin taking possession of the heroin with intent to supply it to another, namely, the appellant himself. In the present context, the principal offender was Witherdin against whom it was proved that he had in his possession a prohibited drug, namely, heroin with intent to supply it to the appellant contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
For these reasons, ground (iii) fails.
It follows that this appeal against conviction should be dismissed.

Application for Leave to Appeal Against Sentence

On 1 March 2002, the learned trial Judge sentenced the appellant to imprisonment for 3 years and 6 months and made an order that he be eligible for parole. The sentence was backdated to and deemed to have commenced from 10 February 2002.
The maximum penalty under the Misuse of Drugs Act for an indictable offence against s 6(1)(a) of the Act is a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years or both. In this case, the quantity of heroin involved was 26.4 grams. In R v Maroney [2002] 1 Qd R 285, which was a Crown appeal against sentence, the appellant was convicted of possession of 27.8 grams of heroin of a purity of 52 per cent with intent to sell or supply. This Court allowed the Crown appeal against a sentence by way of an intensive supervision order on the ground that the sentence was manifestly inadequate. Ipp J (with whom Pidgeon and Wheeler JJ agreed) said at [14] – [15] that:
"This Court has stated several times that it is ordinarily futile to argue that personal circumstances and antecedents have significant mitigatory force where an offender consciously and deliberately participates in the heroin trade. It is necessary only to refer to Quach v R [1999] WASCA 210 and R v Ruich [2000] WASCA 84.
Underlying this approach is the untold harm caused by the drug to the community and particularly to those who are not able to take appropriate care for themselves. In this sense offences involving the distribution of heroin have the general capacity of causing greater suffering than other offences indirectly attributable to the drug but which do not involve its dissemination. This explains why, in cases of heroin supply, the personal circumstances of the offender is of less relevance than in other cases and why this Court has expressed the view that, in cases involving a relatively large amount of heroin, a non-custodial disposition is warranted only in exceptional circumstances. See in this regard Donatelli v R, unreported; CCA SCt of WA; Library 980505; 3 September 1998."
In the present case, the 26.4 grams of heroin involved had a purity of 62 per cent. In the circumstances, there was very little distinction between the two cases in terms of the quantity of heroin involved. In Maroney (supra), the sentence imposed for possession with intent was a sentence of 3 years. As already noted, that sentence was imposed in the context of a Crown appeal. That is also the case here. The difference between the two cases is the recruitment by the appellant of Mr Witherdin as a courier for which he received in payment from the appellant his airfare to and from Sydney as well as a payment of $400.
The application for leave to appeal against sentence was made on the following grounds:
"(1)The learned sentencing Judge erred in imposing a sentence that was manifestly excessive in light of:
(a)circumstances of case
(b)rehabilitation, both on home detention and intensive supervision order
(c)personal antecedence [sic antecedents].
(2)The sentencing Judge erred in not considering imposing a suspended Sentence in light of the rehabilitation which had been undergone by The Applicant.
(3)The learned sentencing Judge erred in imposing a sentence of three [a]nd a half years in excess of the sentence imposed on Mr Witherdin."
For his part in connection with the offence, Mr Witherdin was sentenced to imprisonment for 2‑1/2 years with eligibility for parole. That sentence took into account his plea of guilty at the earliest opportunity and his significant co‑operation with the police to facilitate the appellant's apprehension. Both offenders had a history of drug abuse and Witherdin had previously been convicted in 1989 in New South Wales for supplying cocaine.
Her Honour concluded that the only appropriate disposition was a term of imprisonment. Notwithstanding what appeared to be a degree of rehabilitation on the part of the appellant and compliance with the intensive supervision order, her Honour concluded that:
" … in all of the circumstances given the gravity of your offending and taking into account, as I must, the parity principle in sentencing, I am not persuaded that any term of imprisonment imposed should be suspended. I consider that an appropriate sentence is one of 3 and a half years' imprisonment and I order that you be made eligible for parole."
The sentence was backdated to 10 February 2002.
At the time of sentencing, the appellant was approaching 43 years of age, having been born on 5 April 1959. The Judge noted that the appellant's early family life was somewhat disruptive and had a negative influence upon him, particularly during his formative years. His parents had separated when he was a young child and he had lived with his grandparents for a period. His father remarried, but the appellant did not get on well with his stepmother and there were allegations of physical and emotional abuse directed at him by her. As a consequence, the appellant ran away from home at the age of 13 and lived with his mother for a period of three years. Unfortunately, his mother had considerable physical and emotional problems of her own with which the appellant found it difficult to cope. Nevertheless, at the time of the pre‑sentence report in 2000, the appellant was maintaining contact with both his natural mother and father.

In the meantime, the appellant had established a stable relationship over a period of some 13 years with his partner, which was close and supportive despite his offending. As at March 2002, the appellant was separated, although there was an amicable relationship between them maintained for the sake of the two children aged 9 and 5, the product of that relationship. The learned Judge accepted that the appellant was a good and loving father and husband.
The appellant left school at the age of 16 having been engaged in truanting from school and cannabis abuse. Since leaving school, the appellant had been involved in a variety of business enterprises both in New South Wales and Western Australia. Between 1996 and 1998, his main source of income was a beche‑de‑mer fishing business conducted from a fishing boat which he owned. While the appellant showed considerable commitment and enterprise in the research and setting up of that business, there were financial difficulties from time to time. The appellant attributed the stress and strain which he encountered for his lapse into heroin use. Subsequently, however, the licence for the business was sold for $400,000 which was used to pay off a mortgage and some other debts, as well as on the purchase of heroin. Unfortunately, the boat which was one of the assets of the business was left in Broome. It was vandalised and consequently sold at a substantial loss.
The appellant had a long‑standing history of substance abuse. This affected his health. He also suffered an industrial accident which had led to a need for surgery. He received an award of worker's compensation for that which was applied to the purchase of a house in Fremantle.
The appellant began smoking cannabis when he was aged 15 and was abusing alcohol at the same time. As he grew older, he curbed the excessive intake of such substances. In 1984, however, he went to India and began using unrefined opiates. Upon his return to Australia, he was arrested for importing these drugs and was sentenced to imprisonment for 4 years and released on parole having served 2 years. He remained drug‑free after his release from prison, but when he had his industrial accident he turned to heroin as a pain‑killer. Some time later, he ceased using heroin but, following an emotional crisis involving his mother, he lapsed into reuse at an escalating rate. This in turn led to attempts to address his addiction by engaging in the methadone programme, as well as residential treatment programmes at Cyrenian House, Holyoake and Narcotics Anonymous. Unfortunately, none of these strategies led to a complete cessation of drug abuse. As of March 2002, the appellant was taking methadone, but in decreasing doses.
In the meantime in 2000, the appellant was convicted in the District Court of possession of heroin after a trial on a charge of possession with intent to sell or supply it to another. He was convicted of simple possession. The appellant had been prepared to plead guilty to that charge. In the result, the appellant was placed on an intensive supervision order. The circumstances were that the appellant was apprehended at Perth Airport with approximately 28 grams of heroin concealed on him. The appellant said that he had purchased the drug in Sydney because he was due to spend two months at sea fishing and the heroin was to supply his own habit during that period. An oral pre‑sentence report given to the sentencing Judge in this case on 1 March 2002 was positive and indicated that the appellant had made progress in addressing his heroin addiction.
The offence for which the appellant was placed on the intensive supervision order was committed in January 1999, although the appellant was not sentenced for it until December 2000. It was while he was on bail in respect of the January 1999 offence that the appellant committed the current offence in August 1999. The learned sentencing Judge rightly regarded the commission of a similar offence while on bail as an aggravating factor. It was for this reason also, however, that the appellant had considerable difficulty obtaining bail in relation to the charge, the subject of the current conviction. When bail was finally granted, it was subject to stringent conditions, including home detention, which continued for a period of approximately 15 months.
In this context, the learned Judge, when sentencing the appellant, said:
"I accept that the period of home detention was no doubt very onerous for you to undergo but clearly it came about because of your own criminal behaviour and you were fortunate in the end to obtain bail at all. I accept that this current matter has had a somewhat unfortunate history in the sense that it has taken a considerable amount of time for it to come to trial. That delay was certainly not of your making and I accept that a degree of stress no doubt attached to you awaiting the outcome of your trial."
Her Honour noted that there had been two prior adjournments of the trial, because the Crown could not locate and serve Mr Witherdin with a subpoena to compel his attendance as a witness. In the end, the Crown proceeded without him and relied upon the circumstantial evidence to which I have referred.
The learned Judge went on to say:
"In sentencing you I take into account the gravity of your offending and statutory penalty in relation to it. I must also give consideration to any factors that are mitigatory or aggravating relevant to the circumstances of your offending and your personal circumstances. In this case I take the view that I must also consider the disposition of the charge against Mr Witherdin.
I accept that the heroin which you procured Mr Witherdin to have in his possession with a view to supplying it to yourself was for your own use and therefore you did not intend to disseminate this drug into the community for profit or otherwise. If this had been the case, then your offending would, in my view, have been more serious although that does not mean to say that even as it stands this offence is not serious.
I do consider it an aggravating feature that you involved another person in the commission of this serious criminal offence.
That is not to say that Mr Witherdin did not enter this criminal enterprise willingly and voluntarily but in the end it was clearly [at] your instigation that the offence occurred. One cannot help but draw the inference that one major reason why you involved Mr Witherdin was because of your earlier negative experience in January 1999 when you personally were apprehended with a reasonably large amount of heroin on your person.
Involving Mr Witherdin as a courier no doubt considerably lessened your chances of being detected and apprehended by police. If Mr Witherdin had not cooperated with police and had not led them to you, there is every possibility that you would not have been apprehended and charged and brought to justice. You cannot be punished for exercising your right to trial by jury in the sense that you cannot have a harsher sentence imposed upon you than would properly reflect the gravity of your offending.
Equally however, it cannot be said that you are remorseful for your criminal behaviour in the sense that you did not plead guilty. Whilst you do not have an extensive criminal history you do have a number of drug‑related convictions to which I have previously referred as well as a conviction for possession of heroin in the Court of Petty Sessions in September 1991 for which you were fined $400."
Her Honour noted that being charged with a drug‑related offence in January 1999 did not deter the appellant from committing a similar offence eight months later. Consequently, both specific and general deterrence were relevant. Her Honour also noted the desirability that the appellant be given assistance and encouragement to address and, hopefully, overcome his addiction. Her Honour rejected a submission made on the appellant's behalf that Mr Witherdin was the more culpable offender. It appeared that he was willing to be involved as it provided him with an opportunity to visit Western Australia because he was an old friend of the appellant's partner. He also wished to meet the appellant's youngest child. Witherdin's airfare was paid by the appellant.

In my opinion, it has not been demonstrated that the sentence imposed by the learned Judge was in any way manifestly excessive, even taking account of the lengthy period of home detention, the time spent on the previous intensive supervision order for the previous offence and the appellant's personal antecedents. In my opinion, the sentence imposed was an appropriate sentence in all the circumstances. Given the background, including the fact that the appellant had previously been given the opportunity to reform through an intensive supervision order, this was not an appropriate case for the imposition of a suspended sentence.
Finally, I do not consider that the mere fact that the sentence of imprisonment imposed on the appellant was in excess of the sentence imposed on Mr Witherdin could be characterised as a disparate sentence. In my view, the sentences imposed were a correct reflection of their respective roles in the transaction, bearing in mind the assistance and co‑operation with the police by Mr Witherdin.
For these reasons, while I would grant leave to appeal, I am of the opinion that the appeal against sentence should be dismissed.
ANDERSON J: I have read the judgment of the Chief Justice and entirely agree with it. There is nothing I can usefully add.
MILLER J: I have had the benefit of reading in draft the reasons for judgment of Malcolm CJ in this matter. I agree with his Honour's reasons and with the orders proposed.