R v Armitage
[2017] SADC 17
•2 March 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v ARMITAGE
[2017] SADC 17
Ruling of His Honour Judge Chivell
2 March 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Defendant pleaded guilty to manufacturing methylamphetamine for sale on the basis that he believed another person intended to sell some of it but that he did not intend to sell any of his share. He gave evidence on oath that his share of the methylamphetamine was for his own use and for supply to his girlfriend. Prosecution disputed this version of the facts.
Held: Onus on prosecution to prove beyond reasonable doubt that defendant intended to sell methylamphetamine to another person; onus not discharged; defendant to be sentenced on the basis of facts deposed to by him.
Controlled Substances Act 1984 (SA) s 33(3), s 33LA(a), referred to.
R v Maxwell (1996) 184 CLR 501; R v Pugh (2005) 158 A Crim R 302; R v Storey [1998] 1 VR 359; R v Olbrich (1999) 199 CLR 270; R v Kreutzer (2013) 118 SASR 211, considered.
R v ARMITAGE
[2017] SADC 17
Mr Armitage has pleaded guilty to manufacturing a controlled drug for sale[1] (count 1).
[1] Controlled Substances Act 1984, s 33(3).
The particulars of count 1 are:
James Armitage between the 1st day of June 2014 and the 1st day of August 2014 at Tranmere, manufactured a controlled drug, namely methylamphetamine, intending to sell any of it or believing that another person intended to sell any of it, knowing or being reckless as to the fact the substance was to be a controlled drug.
Mr Armitage also pleaded guilty to possessing prescribed equipment[2] (count 2).
[2] Controlled Substances Act 1984, s 33LA(a).
At about 1 a.m. on 31 July 2014, police attended at an address in Tranmere. The house is owned by Mr Armitage. He inherited it from his mother.
As police walked down the driveway of a neighbouring premises, a police officer saw through a window a small plastic tub on the kitchen table containing what later proved to be methylamphetamine. It weighed 11.8 grams, of which 6.1 grams was pure methylamphetamine (count 1). The police also discovered a ‘clandestine laboratory’ consisting of glassware and other equipment, and chemical residue, in the laundry and in a roof cavity (count 2).
Mr Armitage says that his plea is an admission that he believed that another person intended to sell some of the methylamphetamine, and that the rest of it was for his own personal use and for supply to his girlfriend.
The Director of Public Prosecutions does not accept this version of the facts. It submits that Mr Armitage intended to sell at least some of the methylamphetamine to another person.
A plea of guilty is an admission of all the elements of the offence.[3] The prosecution has pleaded two alternative versions of the offence on the information. There is a dispute about which version of the offence is to be the basis of sentencing.
[3] R v Maxwell (1996) 184 CLR 501 at 511, referred to in R v Pugh (2005) 158 A Crim R 302.
In R v Storey, the Victorian Court of Appeal said:[4]
(T)he judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
This formulation was cited with approval by the High Court in R v Olbrich.[5]
[4] [1998] 1 VR 359 at 369.
[5] (1999) 199 CLR 270 at [24]-[27]. See also R v Kreutzer (2013) 118 SASR 211 per Kourakis CJ at [24].
In this case, the circumstances alleged by the Director of Public Prosecutions are adverse to the interests of the accused. The onus is therefore on the prosecution to prove beyond reasonable doubt that Mr Armitage intended to sell some of the methylamphetamine to another person.
The facts according to Mr Armitage are relatively simple. He gave evidence on oath that he was heavily addicted to methylamphetamine at the time. He said he was using about a gram a day.[6] His girlfriend was also using methylamphetamine.
[6] T 5.
Mr Armitage said he knew a man whom I will call ‘SP’. SP was also a user of methylamphetamine. SP suggested to Mr Armitage that if he allowed his premises to be used to do a methylamphetamine ‘cook’, he would get half of what was made. Mr Armitage agreed. SP set up a laboratory that afternoon using equipment he brought to the house. He then did the ‘cook’.
About 10 minutes before the police arrived, SP went to the ‘servo’ to buy some butane and some other ‘bits and pieces’.[7] He arrived back at the house soon after the police arrived. He telephoned Mr Armitage. The police were having difficulty gaining access to the property. Mr Armitage let them in after SP’s call.
[7] T 8.
Mr Armitage admits that he tried to conceal the tub of methylamphetamine behind a wardrobe while the police were outside. He knew he was in trouble. He also put some of the glassware and chemicals in the ceiling cavity for the same reason.[8]
[8] T 9.
Mr Armitage said he was to retain half of the six grams. He intended that this methylamphetamine was to be used by his girlfriend and himself. He believed that SP would use some of the remainder himself, and sell some of it. He had previously learned that SP was a dealer.[9]
[9] T 9.
Counsel for the Director of Public Prosecutions, Ms Ballard, pointed out in cross-examination that:
·the methylamphetamine was in one tub, not two;[10]
·it appeared that there was to be a further ‘cook’;[11]
·Mr Armitage was undertaking a large risk for a relatively small return, on his story;[12]
·Mr Armitage was in financial difficulties.[13]
[10] T 11.
[11] T 12.
[12] T 14.
[13] T 13-16.
Without going into unnecessary detail, I consider that Mr Armitage provided satisfactory answers to the issues Ms Ballard challenged him about. Six grams of methylamphetamine is a substantial amount. It was not in the form of ‘ice’. The methylamphetamine could have been ‘cut’ to produce a substantially larger amount of the drug. The possibility of a further ‘cook’ does not detract from Mr Armitage’s evidence. There were none of the usual indicia of sale present. Mr Armitage has no prior convictions for manufacturing or selling drugs. There is nothing inherently implausible or unlikely in Mr Armitage’s version of the facts.
In all these circumstances, I am not satisfied beyond reasonable doubt that Mr Armitage intended to sell any of the methylamphetamine found in his possession that night. It is at least reasonably possible that it was intended for the personal use of himself and his girlfriend.
I therefore rule that Mr Armitage should be sentenced on that basis.
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