Pellew v The State of Western Australia - [2011] WASCA 86

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PELLEW -v- THE STATE OF WESTERN AUSTRALIA [2011] WASCA 86

CORAM: McLURE P
BUSS JA
HALL J

HEARD: 21 FEBRUARY 2011

DELIVERED : 7 APRIL 2011

FILE NO/S: CACV 22 of 2010
CACV 24 of 2010
CACR 41 of 2010

BETWEEN: JOANNE JENNIFER PELLEW
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACV 54 of 2010
CACR 76 of 2010

BETWEEN :RAMLI ROBERT HAJINOOR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
For File No              :  CACV 22 of 2010
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MURRAY J
File No  :CPCA 1522 of 2009
For File No              :  CACV 24 of 2010
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
File No  :CPCA 15 of 2009
For File No              :  CACR 41 of 2010
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
File No  :IND BRO 37 of 2007
For File No              :  CACV 54 of 2010
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
File No  :CPCA 15 of 2009
For File No              :  CACR 76 of 2010
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STAVRIANOU DCJ
File No  :IND BRO 37 of 2007

Catchwords:

Criminal law - Misuse of Drugs Act 1981 (WA) - Validity of 'drug trafficker' declaration - Construction of s 32A - Whether summary conviction under s 6(1) a 'serious drug offence' for the purpose of s 32A - Meaning of the word 'crime' as used in the Misuse of Drugs Act 1981 (WA) - Effect of s 3 of the Criminal Code (WA)

Legislation:

Courts Legislation Amendment and Repeal Act 2004 (WA)
Criminal Code (WA), s 3, s 3(5), s 5, s 5(3)(b), s 5(3)(c), s 5(3)(d), s 5(10), s 673
Criminal Code Amendment Act 2004 (WA)
Criminal Procedure Act 2004 (WA), s 3, s 46, s 47, s 83, s 85(2), s 100
Criminal Property Confiscation Act 2000 (WA), s 8
Interpretation Act 1984 (WA), s 67, s 67(1), s 67(1a), s 67(2), s 67(3)
Misuse of Drugs Act 1981 (WA), s 5(1), s 6(1), s 6(1)(c), s 6(2), s 7(1), s 7(2), s 7A(1), s 7A(3), s 8, s 9, s 9(1), s 9(2), s 9(2)(d), s 14(1), s 14(2), s 15, s 16, s 17, s 18, s 25(2), s 29, s 31(4) s 32A, s 32A(1) s 32A(1)(a), s 33(1)(a), s 33(1)(b), s 33(2)(a), s 33(2)(b), s 33(3)(a), s 33(3)(b), s 34(1)(a), s 34(2)

Result:

All appeals dismissed

Category: A

Representation:

CACV 22 of 2010

CACV 24 of 2010

CACR 41 of 2010

Counsel:

Appellant: Mr S K Shepherd
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

CACV 54 of 2010

CACR 76 of 2010

Counsel:

Appellant: Mr S K Shepherd
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

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

Heyes v The State of Western Australia [2008] WASCA 124; (2008) 185 A Crim R 390
Palfrey v Macphail [2004] WASCA 257; (2004) 149 A Crim R 542
Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549
The State of Western Australia v Olive [2011] WASCA 25

McLURE P: The outcome of these appeals depends upon the correctness of declarations made by Stavrianou DCJ on 19 November 2008 under s 32A of the Misuse of Drugs Act 1981 (WA) (MDA) that the appellants, Ramli Hajinoor and Joanne Pellew, are drug traffickers.
Based on the drug trafficker declarations, property of the appellants was confiscated under s 8 of the Criminal Property Confiscation Act 2000 (WA) by orders made by Ken Martin J on 28 January 2010 and by Murray J on 4 March 2010. The appellants appeal from the drug trafficker declarations and the consequential confiscation orders.
The only relevant issue is whether the appellants had been convicted of the required number of 'serious drug offences' so as to enliven the court's duty under s 32A to declare each of them to be a drug trafficker.
The appellants were convicted:
1.on 23 December 2004 in the District Court of Western Australia of possession of cannabis with intent to sell or supply contrary to s 6(1) of the MDA;
2.on 15 March 2005 in the Broome Court of Petty Sessions of possession of cannabis with intent to sell or supply contrary to s 6(1) of the MDA; and
3.on 23 October 2008 in the District Court of Western Australia of conspiracy to sell or supply cannabis contrary to s 6(1)(c) and s 33(2)(a) of the MDA.
The appellants claim that the convictions on 15 March 2005 in the Broome Court of Petty Sessions were not convictions of a serious drug offence within the meaning of s 32A of the MDA.

The statutory scheme

Section 6(1) of the MDA provides:
(1)Subject to subsection (3), a person who ‑
(a)with intent to sell or supply it to another, has in his possession;
(b)manufactures or prepares; or
(c)sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime, 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.
The MDA expressly categorises all offences created under it as either a crime (s 6(1), s 7(1), s 14(1), s 33(1)(a), s 33(2)(a) and s 33(3)(a)), a simple offence (s 5(1), s 6(2), s 7(2), s 7A(3), s 8, s 14(2), s 15, s 16, s 17, s 18, s 25(2), s 29, s 31(4), s 33(1)(b), s 33(2)(b), s 33(3)(b)), or an indictable offence (s 7A(1)). Thus, the MDA distinguishes a crime from an indictable offence.
Section 32A of the MDA relevantly provides:
(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;
(ii)external serious drug offences; or
(iii)offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
or
(b)a serious drug offence in respect of ‑
(i)a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or
(ii)prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,
the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
(2)An application for a declaration under subsection (1) may be made at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction.
(3)In this section ‑
…
serious drug offence means a crime under section 6(1), 7(1), 33(1)(a) or 33(2)(a).
The appellants contend that their summary conviction of the crime under s 6(1) of the MDA is to be regarded for the purposes of s 32A as a conviction of a simple offence only by virtue of s 3(5) of the Criminal Code (WA) (Code).
Section 3 of the Code relevantly provides:
(1)This section applies to offences in this Code and in any other written law.
(2)An indictable offence is triable only on indictment, unless this Code or another written law expressly provides otherwise
…
(5)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 term 'indictable offence' is not now defined in the Code. It is defined in s 67 of the Interpretation Act 1984 (WA) which provides that offences are of two kinds, indictable offences and simple offences (s 67(1)); that an offence designated as a crime or as a misdemeanour is an indictable offence (s 67(1a)); that an offence not otherwise designated is a simple offence (s 67(2)); and that the procedure for prosecuting and dealing with offences is set out in the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) (s 67(3)).
The term 'indictable offence' is also defined in the Criminal Procedure Act (s 3) for which purpose it means 'a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily'. The Criminal Procedure Act defines 'indictment' to mean a document that contains one or more indictable charges, complies with s 85(2), and is lodged with a superior court (the Supreme Court or District Court), and an 'indictable charge' to mean a charge of an indictable offence.
The appellants' construction argument is best understood by replacing the term 'indictable offence' with 'crime' in s 3(5) of the Code and inserting the words 'crime under section 6(1)' in place of the term 'serious drug offence' where it occurs in s 32A. They accept that an offence under s 6(1) is and remains a crime, before and after conviction; their contention is that a summary conviction of that offence is a conviction of a simple offence, which prevents it being a conviction of a crime and thus is not a serious drug offence. The focus is not on the categorisation of the offence but on the deemed effect of a conviction of that offence.
The issue for determination in this appeal has been considered previously in (inter alia) Palfrey v Macphail (2004) 149 A Crim R 542 and Heyes v The State of Western Australia (2008) 185 A Crim R 390. Different views were expressed. Before going to the cases, further background is required.
The relevant statutory regime changed from 21 May 2004 with the commencement of the Criminal Code Amendment Act 2004 (WA) (the Code Amendment Act). Prior to the Code Amendment Act:
1.the Code provided that:
(i)there were three kinds of offences, crimes, misdemeanours and simple offences, and crimes and misdemeanours were indictable offences (s 3);
(ii)a defendant charged with an indictable offence that may be dealt with summarily could, with some exceptions, elect to have the matter tried either summarily or on indictment (s 5);
(iii)when a person had been summarily convicted of an indictable offence, the conviction was deemed a conviction of a simple offence only, and not of an indictable offence (s 673). There was no express exclusion from the scope of this deeming provision;
2.the conduct in s 6(1), s 7(1), s 33(1)(a) and s 33(2)(a) of the MDA was categorised as an 'indictable offence', including in the definition of 'serious drug offence' in s 32A; and
3.s 9(2) of the MDA relevantly provided that a person charged with having committed an indictable offence under s 6(1) or s 7(1), not being a conspiracy to commit that indictable offence, in respect of a quantity of the drugs referred to in Sch III and Sch IV respectively which was less than the quantity specified in Sch III or Sch IV, as the case may be, had to be tried summarily unless the summary court considered for any reason that the person should be dealt with on indictment (par (c)) or the summary court had, after conviction, exercised its power to commit that person for sentence (par (d)).
The purpose of the Code Amendment Act was to reform the process for dealing with, and to widen the range of, offences that may be tried either summarily in the Court of Petty Sessions or on indictment in superior courts (referred to as 'either-way offences'). The Code Amendment Act deleted the definition of indictable offence and repealed s 3, s 5 and s 673 of the Code and s 9 of the MDA.
In addition, the Code Amendment Act:
1.with the Courts Legislation Amendment and Repeal Act 2004 (WA), inserted s 3 of the Code in its current form;
2.inserted definitions of 'indictable offence', 'simple offence' and 'summary conviction penalty' in s 67 of the Interpretation Act;
3.inserted a new s 5 of the Code (set out below);
4.substituted the word 'crime' for 'indictable offence' where it appeared in the MDA, except in s 7A(1); and
5.inserted a new s 9 in the MDA.
All the relevant offences in this case were committed by the appellants after the commencement of the current statutory regime. It is necessary to refer to the terms of the current s 5 of the Code and s 9 of the MDA. Section 5 of the Code relevantly provides:
(1)This section applies if ‑
(a)a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b)a person (the accused) is charged before a court of summary jurisdiction (the court) with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the charge).
(2)Despite section 3(2), the court is to try the charge summarily unless ‑
(a)on an application made by the prosecutor or the accused before the accused pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or
(b)this Code or another written law expressly provides to the contrary.
(3)The court may decide the charge is to be tried on indictment if and only if it considers ‑
(a)that the circumstances in which the offence was allegedly committed are so serious that, if the accused were convicted of the offence, the court would not be able to adequately punish the accused; or
(b)that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and the accused is to be tried on indictment for one or more of those other offences; or
(c)that a co‑accused of the accused is to be tried on indictment; or
(d)that the charge forms part of a course of conduct during which other offences were allegedly committed by the accused and others and the accused or one of the others is to be tried on indictment for one or more of those other offences; or
(e)that the interests of justice require that the charge be dealt with on indictment.
…
(6)A decision cannot be made under subsection (3) after the accused has pleaded to the charge.
…
(8)If the court convicts the accused of the offence charged (whether after a plea of guilty or otherwise), the accused is liable to the summary conviction penalty provided for the offence, unless the court commits the accused for sentence.
(9)If the court ‑
(a)convicts the accused of the offence charged after a plea of guilty or otherwise; and
(b)considers that any sentence the court could impose on the accused for the offence would not be commensurate with the seriousness of the offence,
the court may commit the accused to a court of competent jurisdiction for sentence.
(10)An accused who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.
Section 5(10) of the Code is to be read with s 46, s 47, s 83 and s 100 of the Criminal Procedure Act. The effect of all those provisions is to transform a summary conviction into a conviction on indictment (The State of Western Australia v Olive [2011] WASCA 25 [126]) to which the deeming provision in s 3(5) would have no application.
Section 9 of the MDA relevantly provides:
(1)If a person is charged before a court of summary jurisdiction with ‑
(a)an offence under section 6(1) in respect of a quantity of a prohibited drug referred to in Schedule III that is less than the quantity specified in that Schedule in relation to that prohibited drug;
(b)an offence under section 7(1) in respect of a number of prohibited plants of a particular species or genus referred to in Schedule IV that is less than the number specified in that Schedule in relation to that species or genus; or
(c)an offence under section 7A(1),
then, except in a case where the person is charged with conspiring to commit the offence, the summary conviction penalty for the offence is that set out in section 34(2)(b).
Section 9(1) links with s 5 of the Code and covers most 'either‑way' offences in the MDA.
Section 34 of the MDA provides for penalties. The penalty for a person convicted of a crime under s 6(1) or s 7(1) is set out in s 34(1)(a). Section 34(2) is expressly referred to in s 9(1) and provides:
(2)A person who is convicted of a crime referred to in subsection (1)(a) ‑
(a)being a crime ‑
(i)relating only to cannabis; and
(ii)not relating to cannabis resin or any other cannabis derivative or to any prohibited drug or a prohibited plant other than cannabis,
is liable, if sentenced by the District Court or the Supreme Court, to a fine not exceeding $20 000 or to imprisonment for a term not exceeding 10 years or both; or
(b)is liable, if sentenced by a summary court, to a fine not exceeding $5 000 or to imprisonment for a term not exceeding 4 years or both.
It is significant that s 34(2) refers to a person having been convicted of a crime in a court of summary jurisdiction. Section 10 deals with matters prior to conviction and is of limited relevance in this context.
The Full Court in Palfrey, construing the former statutory framework, held that by virtue of s 673 of the Code and with the exception of a committal for sentence under s 9(2)(d), a summary conviction of an offence under s 6(1) was not a serious drug offence for the purposes of s 32A(1) of the MDA. The Full Court relied on the exception in s 9(2)(d) as providing the limited circumstances in which a police prosecutor would have standing to apply in a summary court for a drug trafficker declaration under s 32A. On that basis, the court declined to follow the decision of Roberts-Smith J in Perejmibida v Skelcher (2002) 127 A Crim R 549. I am not persuaded that the very minor role of summary courts under s 9(2)(d) was a compelling explanation for the reference in s 32A(1) to a police prosecutor. Further, s 34(2) was not drawn to the court's attention in Palfrey.
The Court of Appeal in Heyes, construing the former and current statutory regime, unanimously held that a person convicted of an offence under s 6(1) of the MDA is convicted of a crime for the purposes of s 32A(1)(a), whether or not the conviction was in a court of summary jurisdiction. I agree. There are two routes to that conclusion. The first is to read down the definition of 'serious drug offence'. The second is to imply a statutory intent to exclude the operation of the deeming provision in s 3(5) of the Code. My preference is for the first route.
Either way, the relevant question of statutory construction is whether s 32A of the MDA is intended to apply to all convictions for offences specified in the definition of serious drug offence, which are crimes, or

only to convictions of those offences on indictment in the Supreme or District Court. That in turn depends on whether or not the word 'crime' in the definition of serious drug offence is solely for the purpose of identifying or describing the relevant offences, or alternatively is to set the bar by reference to the category of the conviction.

I am of the opinion it is the former. The term 'crime' is used in the MDA (and the Code) in place of the word 'offence' and is an integral part of its description. The term is used to capture both the status, and the seriousness, of the conduct as an offence. The category of conviction under the deeming provision in s 3(5) is based on the seriousness of the circumstances of the actual offending, not the seriousness of the offence itself. Of particular significance in resolving the construction question is the fact that the word 'crime' in the expression 'convicted of a crime' in s 34(2) must have the sole purpose of identifying the relevant offences and that the subsection is one of the gateway provisions for an either‑way offence being dealt with summarily under s 5 of the Code.

That statutory intention is also consistent with other aspects of s 32A(1). Giving police prosecutors, who only ever appear in summary courts, standing to apply for a drug trafficker declaration indicates that a court of summary jurisdiction can come under a duty to declare a person a drug trafficker. That jurisdiction would only arise if a summary court had convicted the offender of the serious drug offence enlivening the duty.
I am also fortified in my view of the statutory intention by the potential for arbitrariness of outcomes if the deeming provision in s 3(5) of the Code applied. A court of summary jurisdiction may decide a charge is to be tried on indictment in each of the circumstances in subs (3)(b), (c) and (d) of s 5. The circumstances in those paragraphs, which have no connection with the seriousness of the circumstances of the offending, frequently arise in the case of crimes under the MDA.
For these reasons, I conclude that the expression 'serious drug offence' in s 32A of the MDA means in effect the offences in the specified sections. Thus, Stavrianou J was correct to make the drug trafficker declarations challenged in these appeals. Accordingly, all of the appeals should be dismissed.
BUSS JA: The material facts and issues in these appeals are set out in the reasons for decision of McLure P. I agree with the President that the appeals should be dismissed. I adhere to the opinions expressed by Steytler P and me (Miller JA agreeing) in our joint reasons in Heyes v The

State of Western Australia [2008] WASCA 124; (2008) 185 A Crim R 390.

HALL J: I agree with McLure P.