R v Irvine
[2015] SADC 113
•30 July 2015
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v IRVINE
[2015] SADC 113
Ruling of His Honour Judge Chivell
30 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES
Accused pleaded guilty to trafficking in methylamphetamine. Disputed facts – whether he possessed the drug intending to sell it (prosecution case) or whether he was taking part in the process of sale by storing, guarding or concealing it on behalf of another person (his case). Onus on accused to prove his case on the balance of probabilities – not discharged – to be sentenced on the basis that he was in possession of the methylamphetamine for the purpose of selling it.
Controlled Substances Act 1984 s 4(1), s 4(4), s 4(5), s 32(3), s 32(5), s 44, referred to.
R v Kreutzer (2013) 118 SASR 211; R v Olbrich (1999) 199 CLR 270; Weininger v R (2003) 212 CLR 629; R v Paloja [2014] SASCFC 92, applied.
R v Selita [2004] SASC 292, distinguished.
R v IRVINE
[2015] SADC 113
Mr Irvine has pleaded guilty to trafficking in a controlled drug, namely methylamphetamine. This is an offence against s 32(3) of the Controlled Substances Act 1984 (‘CSA’).
The offence occurred on 13 June 2012.
This is a ruling about the basis on which he should be sentenced. The prosecution alleges that he intended to sell the methylamphetamine on his own account. He says that he possessed the methylamphetamine for a short time on behalf of another person.
Mr Irvine also pleaded not guilty to possessing a class D firearm without a licence (Firearms Act 1977, s 11); possessing a prescribed quantity of a controlled precursor (CSA, s 33LB(1)), namely red phosphorus; possessing an unregistered firearm (Firearms Act, s 23(1)); failing to secure a class D firearm (Firearms Regulations 2008, regs 38(2) and 61); and possessing a dangerous article without lawful excuse (Summary Offences Act, s 15(1b)(b)), namely a taser. On 5 June 2015, a jury convicted Mr Irvine of all of these charges except possession of the taser.
Mr Irvine gave evidence before me on 17 July 2015 and I heard submissions from counsel on that day and on 24 July 2015.
Section 44 of the CSA deals with ‘Matters to be considered when court fixes penalty’. Those matters include:
(a) subject to subsection (2), the nature of the substance or goods involved in the commission of the offence; and
(b) the quantity of the substance or goods involved in the commission of the offence; and
(c) the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person's use (if at all) of any controlled drug; and
(d) in the case of an offence against Part 5 Division 2 or 3—
(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 that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005);
(da)[not relevant]
(e) any other relevant factor.
‘Trafficking’ is defined in s 4(1) (a) of the CSA. It can mean:
(a)selling the drug; or
(b)having possession of the drug intending to sell it; or
(c)taking part in the process of sale of the drug.
Subsections (4) and (5) of s 4 of the CSA define (c) as follows:
(4) For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5) For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a) storing the drug;
(b) …
(c) …
(d) guarding or concealing the drug;
(e) …
(f) …
[irrelevant parts omitted]
The Director of Public Prosecutions contends that Mr Irvine committed the offence by having possession of the drug intending to sell it. Mr Irvine contends that he was merely taking part in the process of sale by storing, guarding or concealing the drug on behalf of another person.
Ms De Palma, counsel for the prosecution, submitted that s 32(5) of the CSA creates a presumption that Mr Irvine was selling methylamphetamine. He was in possession of a ‘trafficable quantity’ of the drug (more than 2 g). Section 32(5) provides:
(5) If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i) was acting for the purpose of sale of the drug; and
(ii) had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
I reject Ms De Palma’s submission. All s 32(5) does is create a presumption that he had either the relevant belief or the relevant intention necessary to constitute the offence. Either state of mind is sufficient to constitute the offence. The presumption is of no help to me in deciding which of the competing states of mind has been proved on the evidence (see R v Selita,[1] when Perry J held that upon a plea of guilty, the section creating the presumption (then s 32(3)) had ‘no work to do’).
[1] [2004] SASC 292 at [54].
Onus of Proof
Mr Gaite, counsel for Mr Irvine, submitted that, on the authority of Selita, the onus of proving beyond reasonable doubt that the defendant intended to sell the drug himself is on the prosecution.
In that case, a disputed facts hearing was conducted in a case where Mr Selita was charged with possessing cannabis ‘for sale or supply’. He pleaded guilty to supply only, but the Director of Public Prosecutions did not accept his plea on that basis. A disputed facts hearing was then conducted. Perry J said this procedure was ‘irregular’.[2] The judge should have treated the plea as one of not guilty.
[2] at [28].
If he had pleaded guilty to ‘sale or supply’ and then asserted that it was all for supply, then the onus was on the prosecution to prove beyond reasonable doubt that all or part of it was for sale.[3]
[3] Perry J at [56]. This was conceded by the Director of Public Prosecutions – Gray J at [84].
Selita is distinguishable because in that case there was a choice, when imposing penalty for a single offence, between a commercial purpose for possession (sale) and a non-commercial purpose (supply). Perry J held that the commercial purpose was an aggravating factor, and so the onus of proving it beyond reasonable doubt was on the Director of Public Prosecutions.
In this case, there is no such choice. A commercial purpose for possession, either held by Mr Irvine or the person on whose behalf he was holding the drug, was inherent in his plea of guilty to trafficking. There is no non-commercial form of trafficking.
In R v Kreutzer,[4] Kourakis CJ said:
[4] (2013) 118 SASR 211 at [36].
If all that is known after a plea to commercial possession of cannabis is that a commercial quantity was found in a car driven by the appellant, the court must fix an appropriate sentence as best it can, but, given the great uncertainty over the offender’s culpability, the sentence might properly fall anywhere within a very wide range. A defendant who contended that his possession was fleeting and that he was holding the cannabis for a friend for no reward, would carry the onus of proving that mitigatory circumstance and, if successful, the proper range for the sentence would contract to the lower end of, if not below, the wide range which was available when nothing more than his possession was known to the court. Of course a failure to prove that the possession was fleeting would not prove its converse; it would mean that the court must once again sentence as if nothing more was known. Let it now be assumed that the prosecution contended that the defendant was to transport the cannabis interstate for an organised drug syndicate. If that were proved beyond reasonable doubt, the proper range of the sentence would move towards, and perhaps beyond, the more severe end of the range previously contemplated.
(My underlining.)
Gray and Blue JJ did not deal specifically with the fact-finding methodology outlined by Kourakis CJ, but, applying R v Olbrich[5] and Weininger v R,[6] confirmed the correctness of his Honour’s general approach. They said:[7]
In dismissing the appeal and concluding that the sentencing judge “treated what was known of the [defendant’s] character and antecedents as neither working in his favour nor against him”, the observations of the court in Olbrich were referred to and adopted by the plurality in Weininger:
In R v Olbrich, the Court examined a number of questions relating to fact finding in sentencing, usually discussed under the rubric of the onus and standard of proof in sentencing. As the joint reasons point out, “[r]eferences to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings”. The Court adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey, that a sentencing 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.
(Footnotes omitted.)
[5] (1999) 199 CLR 270.
[6] (2003) 212 CLR 629.
[7] at [66].
In R v Paloja,[8] Vanstone J (with whom Nicholson and Bampton JJ agreed) said:
The submission that the appellant’s involvement was, in effect fleeting, was a matter going to mitigation and therefore fell to be proved by the appellant on the balance of probabilities: Olbrich at [27]. The appellant did not undertake that task.
[8] [2014] SASCFC 92 at [17].
On the basis of these authorities, it is clear that Mr Irvine has the onus of proving on the balance of probabilities that his possession of the methylamphetamine was, to use Kourakis CJ’s word, ‘fleeting’ and on behalf of another person.
Ms De Palma pointed to the following evidence to support her case:
·the amount in possession – the police found a tub containing paste weighing 23.8 g, which included 10.3 g of pure methylamphetamine, in Mr Irvine’s freezer;
·the value of the methylamphetamine – it would have been worth between $7,000 and $18,000, depending on how it was sold;
·the presence of a motive to sell methylamphetamine – he was in debt as a result of a gambling addiction and a drug addiction;
·the presence of a tool of trade – a set of digital scales was found on top of the refrigerator in which the methylamphetamine was found. The scales did not work;
·the presence of red phosphorus in Mr Irvine’s shed demonstrates an interest in illegal drugs. Red phosphorus can be used to manufacture methylamphetamine. There is no evidence that Mr Irvine was manufacturing it, but there is a black market trade in red phosphorus since possession of it is illegal.
I found Mr Irvine’s evidence entirely unconvincing. It is inherently unlikely that a drug dealer, whom he would not name, would entrust such a large amount of methylamphetamine to one of his customers, an addict in financial trouble, with an open invitation to use some of it. Mr Irvine had no money to pay. He already owed the dealer money. There was a vague arrangement that the dealer would come and get the methylamphetamine later. The purpose of the arrangement was that the dealer was going somewhere in his car and did not want the risk of being pulled over while in possession of it. It would be surprising, if he was concerned about that, that he would put the drugs at risk by allowing Mr Irvine to take them home in his car.
Mr Irvine’s evidence about the scales on the refrigerator was also unconvincing (T 18, T 41-2). At one stage he suggested he had used the scales that morning to take methylamphetamine from the tub in the freezer. This is inconsistent with his evidence that he had only possessed the tub for an hour or two before the police arrived. If he had used the scales for that purpose, it is likely he had had the methylamphetamine for longer than that.
Mr Irvine was a very unimpressive witness. His demeanour in giving evidence was secretive and evasive. He refused to confront the implausibility of his story.
Having regard to those matters, and to the evidence identified by Ms De Palma which gives rise to a strong inference to the contrary, I reject Mr Irvine’s evidence as to the reason for his possession of methylamphetamine. He has not satisfied the onus on him to prove his contention.
I find that Mr Irvine was in possession of the methylamphetamine for the purpose of selling it.
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