R v Bais, Bungert & Ross - [2005] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v BAIS, BUNGERT & ROSS
Reasons for Ruling of His Honour Judge Clayton
13 January 2005
CRIMINAL LAW
DISPUTED FACT HEARING
HELD: A statutory provision which deems more than a prescribed quantity of drugs to be possessed for sale does not establish “commerciality” for the purpose of sentencing for the separate offence of manufacturing the same drug.
Prosecution had not proved beyond reasonable doubt that the manufacture of methylamphetamine was for so called “commercial” purposes notwithstanding a jury verdict that the first and second defendants were guilty of the offence of possession of the same drug for sale.
Controlled Substances Act 1984 s 32(1)(b), s 32(3), referred to.

R v BAIS, BUNGERT & ROSS
[2005] SADC 1

Julia Vanessa Bais, Susan Ruth Bungert and Tony Ross were jointly tried before a jury on charges of taking part in the manufacture of methylamphetamine and possessing methylamphetamine for sale. Ms Bais and Mrs Bungert were found guilty of taking part in the manufacture of methylamphetamine and possessing methylamphetamine for sale. Mr Ross was found guilty of taking part in the manufacture of methylamphetamine, not guilty of possessing methyl-amphetamine for sale, but guilty of the alternative charge of simple possession of methylamphetamine.
On 3 December 2004 there was a disputed facts hearing at which counsel for each of the defendants submitted that their respective clients should be sentenced on the basis that there was no “commerciality” attached to the first count of taking part in the manufacture of methylamphetamine. In the case of Mr Ross, the submission that there was no “commerciality” extended to his conviction for simple possession.
To put the submission into context it is necessary to consider subsection 32(3) of the Controlled Substances Act 1984 which provides that, in the absence of proof to the contrary, a person who knowingly has in his or her possession more than the prescribed amount of a drug shall be presumed to have that drug in his or her possession for the purpose of sale. The verdict that Ms Bais and Mrs Bungert were in possession of methylamphetamine for sale is likely to be a consequence of the fact that the prosecution case was that they were in possession of more than the prescribed quantity of methylamphetamine.
The arguments of Mr Ross on the one hand and Ms Bais and Mrs Bungert on the other need to be considered separately.
The argument on behalf of Mr Ross was that he should be sentenced on the most favourable view of the facts open on the jury’s verdict, namely, that he was involved in the production of methylamphetamine and possessed methyl-amphetamine, but there was no commercial element. Counsel submitted that it was implicit in the verdict that the jury took the view that there was no commerciality attaching to Mr Ross’s involvement.
The Crown submitted that the production in which all three participated was committed against the background of commercial production or had a commercial flavour to it. That sweeping submission was not supported by evidence. The Crown submission depended largely upon the quantity of methyl-amphetamine produced. In all there was 8.21 grams of methylamphetamine of which 6.28 grams was found in a bedroom and 1.93 grams was found in the lounge room of the house. The prosecution case was that after being cut by one half the value of the methylamphetamine was over $8,200.
Each of the defendants was a user of methylamphetamine. That was established by tests conducted at the time they were arrested. Counsel for Mr Ross suggested that the quantity of methylamphetamine seized would have only been sufficient for two or three days personal supply for a heavy user.
The Crown also relied upon the presence of a large quantity of cold and flu tablets in the house. It was said that those tablets indicated an intention to manufacture additional methylamphetamine.
In my opinion, none of the matters relied upon by the Crown established commerciality in the case of Mr Ross. The evidence against Mr Ross was that he hurriedly departed from the premises on the arrival of the police and his fingerprints were found on a plate containing 1.93 grams of methylamphetamine in the lounge room of the house. There was no evidence to connect Mr Ross with other methylamphetamine found in the bedroom.
I am not satisfied that the evidence establishes beyond reasonable doubt that Mr Ross was engaged in a commercial enterprise. Also, I think the submission of his counsel that the verdict of the jury is inconsistent with him being involved in a commercial enterprise is correct. I accept that the jury must have taken the view that there was no commerciality in Mr Ross’s involvement. The case against Mr Ross is to be contrasted with the case against the other two defendants where the jury found them guilty of possession of methylamphetamine for sale.
As I have mentioned, the Crown submission depended largely upon the quantity of methylamphetamine. The total quantity found in the house was 8.21 grams, but the defendants say that may have been only two or three days personal supply for three heavy users and does not establish commerciality. There was evidence at the trial which supported that submission. The cold and flu tablets found in the premises could be evidence of an intention to manufacture a further 60 to 90 grams of methylamphetamine, but that does not by itself establish a commercial purpose. The prosecution did not establish any connection between the cold and flu tablets and Mr Ross. As I have mentioned, the presence of Mr Ross at the house was unexplained. The house was the home of Mrs Bungert and evidence established that Ms Bais was a regular visitor. Material found in the bedroom of the house implicated Mrs Bungert and Ms Bais, but not Mr Ross.
There is logic in the submission of counsel for Mr Ross that the jury accepted that the evidence only established a connection between Mr Ross and the methylamphetamine found in the lounge room which totalled less than the prescribed amount of 2.0 grams, namely, 1.93 grams. The verdict of not guilty of the offence of possession for sale indicates that the jury did not accept that Mr Ross was in possession of the 6.28 grams of methylamphetamine found in the bedroom. The jury had been directed that if they had found Mr Ross in possession of more than 2.0 grams of methylamphetamine they should find him guilty of possession for sale. If follows that the jury did not find Mr Ross to be in possession of the 6.28 grams in the bedroom and they accepted that the only methylamphetamine in his possession was the 1.93 grams in the lounge.
The Crown relied upon the presence of a set of scales to establish commerciality. The scales were found in the bedroom. There is no evidence that Mr Ross was aware of their presence and so far as the other defendants are concerned the presence of the scales is equivocal.
As to the defendants, Bais and Bungert, the presumption which applied with the charge of possessing methylamphetamine does not apply to the charge of manufacturing methylamphetamine. Once the jury found that Ms Bais and Mrs Bungert were in possession of methylamphetamine for sale it may seem a small and logical step to find that there was “commerciality” in the manufacture of the same methylamphetamine. The verdict that Ms Bais and Mrs Bungert were guilty of possession for sale is explained by the jury’s apparent acceptance of the prosecution case that Ms Bais and Mrs Bungert had more than 2.0 grams in their possession so that the deeming provision operated. However, the deeming provision does not apply to the offence of taking part in the manufacture of methylamphetamine and the Crown must prove actual “commerciality” beyond reasonable doubt.
The argument that Ms Bais and Mrs Bungert were involved in a commercial enterprise is obviously stronger than the argument against Mr Ross. Not only were they convicted of possession for sale, but also they had a real connection with the premises. The presence of the cold and flu tablets is of more significance in their cases. Also, they could be linked to the presence of the scales and the production of the methylamphetamine in the bedroom so that they were linked to the entire 8.21 grams. While those matters may provide an inference of commerciality, that inference falls short of establishing beyond reasonable doubt that the three defendants took part in the manufacture of methylamphetamine for commercial purposes.
I do not accept that a commercial purpose is established by the quantity of methylamphetamine which was found in the house.
I am influenced by the fact that if the methylamphetamine was divided between three users, there was an explanation other than a commercial purpose, namely personal use, for the quantity which was found
I am also influenced by the fact that there is no evidence of actual trading in methylamphetamine by any of the defendants.
Accordingly, I propose to sentence each of the three defendants upon the basis that, in the case of the offence of taking part in the manufacture of methyl-amphetamine contrary to section 32(1)(b) of the Controlled Substances Act 1984, “commerciality” has not been established. That gives rise to an anomaly in that technically the defendants Bais and Bungert must be sentenced for the offence of possessing methylamphetamine for sale and taking part in the manufacture of the same methylamphetamine for purposes not shown to be for sale. That anomaly is a consequence of the legislation. However, in the sentencing process the anomaly is unlikely to have any practical effect. The deeming provision exists for the purpose of establishing an element of the statutory offence of possession for sale. When it comes to sentencing, the court should have regard to established facts and circumstances.