R v Geale No. DCCRM-03-51 - [2003] SADC 126

R v Sandra Diane GEALE
[2003] SADC 126
CRIMINAL - RULING
JUDGE DAVID SMITH
Introduction

The defendant is charged with:
·Possessing methylamphetamine for sale or supply
(s32(1)(e) of the Controlled Substances Act, 1984); and
·Possessing cannabis
(s31(1)(a) of the Controlled Substances Act, 1984).
It is now clear that charging a defendant with possessing methylamphetamine for sale or supply, is not duplicitous. Section 32(1)(e) creates one offence. The precise purpose of the possession is not an essential ingredient to the offence (see R v Hoang [2002] SASC 262).
In this Court, on the 10^th February 2003, the defendant pleaded guilty to possessing methylamphetamine for supply only. She also pleaded guilty to possessing cannabis. However, the Crown would not accept the plea to the first count in satisfaction of the first count.
Having regard to s44 of the Controlled Substances Act, 1984, the fact that a defendant is in possession of a substance such as methylamphetamine for the purpose of sale is a matter of aggravation. That section provides, inter alia:
“44.In determining the penalty to be imposed upon a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration –
(d) in the case of an offence involving the manufacture, production, sale or supply of a drug of dependence or prohibited substance, or the possession of a drug of dependence or prohibited substance with intent to sell or supply it to another –
(i)the commercial or other motives of the convicted person in committing the offence; and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if an application for forfeiture of property has been made under the Criminal Assets Confiscation Act 1996 in respect of that financial gain);”
Accordingly, a disputed fact hearing took place before me on the 4^th August 2003. At issue was whether the offence constituted by Count 1 was aggravated by the defendant possessing at least some of the amphetamine for the purposes of sale. The defendant herself gave evidence and called a witness named Christopher Buck. The Crown did not adduce evidence but rather relied upon the declarations there being no contest about the facts alleged therein. The Crown carries the burden of establishing any circumstances of aggravation beyond reasonable doubt (see R v Anderson (1992-93) 177 CLR 520; R v Olbrich (1999-2000) 199 CLR 270; and R v Lobban (2001) 80 SASR 550).
The declarations and oral evidence
I set out hereunder the uncontested facts which emerge from the declarations.
The defendant was arrested on the 19^th September 2002. A search of her premises at Waikerie resulted in the discovery in her freezer of a total of 0.55 grams of methylamphetamine contained in 21 small plastic press seal bags. The weight and methylamphetamine content of the powders are as set out in the following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] SADC 126
Decision Date: 21 August 2003

CaseChat Overview and Summary

In the matter of R v Sandra Diane Geale, the defendant stands accused of possessing methylamphetamine with intent to sell or supply, and possessing cannabis. The case was heard in the South Australian District Court. The primary legal issue was whether the defendant's possession of methylamphetamine was for the purpose of sale or supply, which would constitute an aggravating factor under the Controlled Substances Act 1984. The court was required to determine if the Crown had proven this aggravating circumstance beyond reasonable doubt, as per the legal precedents set in cases such as R v Anderson, R v Olbrich, and R v Lobban.

The court considered the evidence provided, including the defendant's testimony and the declarations from the police. The defendant claimed she purchased the methylamphetamine for personal use and to pay for work done around her home, using the small packages as a form of payment. However, the court found these explanations implausible, particularly in light of the quantities involved and the packaging of the drugs, which were in small, saleable units. The court also rejected the defendant's explanations regarding a list of names and monetary amounts, as well as the significance of certain telephone calls, as lacking credibility.

The court concluded that the evidence, taken as a whole, led to an overwhelming inference that the defendant possessed at least some of the methylamphetamine for the purposes of selling it. The defendant's explanations did not reasonably arise from the circumstances, and thus, the Crown had successfully proven the aggravating circumstance beyond reasonable doubt. The court found that the defendant engaged in a small commercial operation, possessing methylamphetamine for both sale and supply.

Orders