R v Jamieson

[2014] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Jamieson [2014] QDC 227

PARTIES:

THE QUEEN

V

RYAN MICHAEL JAMIESON

FILE NO/S:

SOUT-DIS 52/2014

DIVISION:

Criminal

PROCEEDING:

Sentence

DELIVERED ON:

26 September 2014

DELIVERED AT:

Southport

HEARING DATE:

26 September 2014

JUDGE:

Judge C F Wall QC

ORDER:

Objection overruled

CATCHWORDS:

CRIMINAL LAW – PROCEDURE –  INDICTMENT – SENTENCE – CIRCUMSTANCE OF AGGRAVATION – whether charge of unlawfully supplying a dangerous drug simpliciter charges a schedule 1 or schedule 2 offence within the meaning of the Drugs Misuse Act 1986 – whether particular drug or schedule should be specified in the charge

Drugs Misuse Act 1986 ss 6(1), 129(1)(a) and (e), and Schedule 1 and Schedule 2
Criminal Code ss 1, 564(2) and 707
Criminal Practice Rules rr 13(3), 15(a) and Schedule 4 (Form 353)

COUNSEL:

Ms K. Sampson for the Crown

Mr M. McMillan (solicitor) for the Defendant

SOLICITORS:

Director of Public Prosecutions, Southport for the Crown

McMillan Criminal Law for the Defendant

HIS HONOUR: The defendant is charged in counts 1, 2, 3 and 4 of the indictment, with four offences of unlawfully supplying a dangerous drug to another person. Mr McMillan, for the defendant, submits that because the charges do not particularise a schedule 1 drug, they must be taken to allege only a schedule 2 drug with the maximum penalty being 15 years imprisonment. Under section 6 of the Drugs Misuse Act, the maximum penalty for supplying a schedule 1 drug to another person is – so far as this court is concerned – 20 years imprisonment, and for a schedule 2 drug, 15 years imprisonment. He submits that because the charges do not particularise the dangerous drug supplied they must be dealt with on the basis that the drug is a schedule 2 drug, rather than a schedule 1 drug, and he relies on section 564(2) of the Criminal Code.

The history of the matter appears to be as follows.  On 3 April 2014 at the request of counsel then acting for the defendant, the charges were particularised as follows:  count 1, schedule 2 dangerous drug; count 2, schedule 2 dangerous drug;  count 3, schedule 1 dangerous drug;  count 4, schedule 1 dangerous drug;  see exhibit 6.  These particulars are consistent with the schedule of facts tendered on sentencing, exhibit 2, which effectively alleges a schedule 2 drug for counts 1 and 2 by reference to 15 years imprisonment as the maximum penalty and a schedule 1 drug for counts 3 and 4 by reference to the maximum penalty of 20 years imprisonment. 

In the right-hand column of exhibit 2, under the heading “Drug and Quantity” the following is stated:

Total of 2.745 grams of methylamphetamine (0.633 grams of pure methylamphetamine);  153 grams of cannabis.

Section 564(2) of the Criminal Code provides:

If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment. 

A circumstance of aggravation is defined in section 1 of the Code in the following terms:

A circumstance of aggravation means any circumstance by reason whereof an offender is liable to a greater punishment than that to which the offender would be liable if the offence were committed without the existence of that circumstance.

Section 129(1)(a) of the Drugs Misuse Act provides as follows:

(1)In respect of a charge against a person having committed an offence defined in part 2-

(a) it is not necessary to particularise the dangerous drug in respect of which the offence is alleged to have been committed. 

Supplying a dangerous drug is an offence defined in part 2. 

Section 6 provides as follows:

Supplying dangerous drugs

(1)A person who unlawfully supplies a dangerous drug to another, whether or not such other person is in Queensland, is guilty of a crime.

Maximum penalty—

(a)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the offence is one of aggravated supply under subsection (2)(a)—life imprisonment; or

(b)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the offence is one of aggravated supply under subsection (2)(aa), (b), (c), (d) or (e)—25 years imprisonment; or

(c)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and paragraphs (a) and (b) do not apply—20 years imprisonment; or

(d)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the offence is one of aggravated supply under subsection (2)(a)—25 years imprisonment; or

(e)if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and the offence is one of aggravated supply under subsection (2)(aa), (b), (c), (d) or (e)—20 years imprisonment; or

(f) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 2 and paragraphs (d) and (e) do not apply—15 years imprisonment.

(2)For the purposes of this section, an offence is one of aggravated supply if the offender is an adult and—

(a)the person to whom the thing is supplied is a minor under 16 years; or

(aa)the person to whom the thing is supplied is a minor who is 16 years or more; or

(b)the person to whom the thing is supplied is an intellectually impaired person; or

(c)the person to whom the thing is supplied is within an educational institution; or

(d)the person to whom the thing is supplied is within a correctional facility; or

(e)the person to whom the thing is supplied does not know he or she is being supplied with the thing.

Section 6(1)(c) and (f) are the subsections applying to the present case.

Section 707 of the Criminal Code provides:

A form prescribed under a rule of court for a criminal proceeding is taken to be-

(a)   sufficient for the purpose for which it is to be used; and

(b)   if used, a sufficient statement of the relevant offence or matter.

Notwithstanding s 129(1)(e) of the Drugs Misuse Act, Form 353 (in schedule 4) of the forms in the Criminal Practice Rules states the form to be used for a charge such as present in the following terms:

Unlawfully supplied the dangerous drug (name the drug) to another person (or to EF).  

The form then gives the following example of how the offence with a circumstance of aggravation may be expressed.

Being an adult unlawfully supplied the dangerous drug (name the drug) to EF, a minor (or an intellectually impaired person)….

Form 353 suggests that the drug be named as opposed to being described as a schedule 1 or a schedule 2 drug.

Rule 13(1) of the Criminal Practice Rules provides:

The forms to be used under these rules are the approved forms and the forms in schedules 2 to 5. 

Rule 15(a) provides as follows:

The statement of an offence in an indictment… may be in the words of

(a)the schedule form for the offence, with the changes necessary to make the words consistent with the particular circumstances of the alleged offence

It is clear that use of the form is not mandatory.

Mr McMillan submits that s 6(1) creates an offence of supplying a schedule 2 drug and if the Crown wants to allege a schedule 1 drug they must specify it. In my view, that is not the case. Notwithstanding the way it is set out, section 6 in my view, effectively creates five separate offences not one offence of unlawfully supplying a dangerous drug to another with a penalty which then increases depending upon the nature of the drug.

For the purpose of a charge against section 6(1), the particular drug could be included in the charge in accordance with form 353, or the charge could specify the drug as a schedule 1 or schedule 2 drug, or details of the drug could be provided by particulars as they were in the present case.

In view of the particulars, exhibit 6, the defendant, when he was arraigned and pleaded knew precisely what he was pleading to and in particular knew that he was pleading guilty to unlawfully supplying a schedule 2 dangerous drug in counts 1 and 2 and unlawfully supplying a schedule 1 dangerous drug in counts 3 and 4 because of the particulars provided.

Section 6(1)(a) - (f) are not so much circumstances of aggravation, but particular offences which may be charged with the drug named or the drug particularised, as was done in the present case. For those reasons I overrule the defence objection.

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