R v Urbanski

Case [2010] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v URBANSKI

[2010] SASCFC 57

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Gray and The Honourable Justice Kelly)

19 November 2010

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Appeal against conviction and sentence - defendant pleaded guilty to possessing a controlled drug for supply, contrary to section 33I(1)(b) of the Controlled Substances Act 1984 (SA) - where defendant found in possession of 18 ecstasy tablets - where agreed factual basis was that defendant had purchased nine of those tablets from another, but had possession of all 18 with an intention to return the remaining nine to that individual - where agreed that other than returning the nine tablets, the defendant did not intend to further sell or supply the tablets - whether intended return of the drug to its "owner" amounted to the offence of possessing a controlled drug for supply - meaning of "supply".

Held: appeal against conviction dismissed.

(Duggan J):  the word "supply" must bear its ordinary meaning - where drugs are transferred into the possession of a person for safekeeping, the mere return of the drugs to the transferor would not constitute supply - however in the present case there was a pooling of all 18 ecstasy tablets and no expectation that the defendant would return nine specific tablets to the other individual - division of the drugs and the transfer of nine of them to the other individual would constitute supply.

(Gray and Kelly JJ): defendant possessed the ecstasy tablets with an intention to supply - no basis for distinction in cases of supply where the intended end user initially provided the substance to the person in possession - the return of the drugs to the "owner" would relevantly constitute supply - policy and purpose of the Controlled Substances Act discussed.

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)

Defendant sentenced to a period of seven months and two weeks imprisonment, reduced from nine months on account of his plea of guilty - sentence suspended on entry by the defendant into a good behaviour bond for two years - whether sentence manifestly excessive.

Held: Appeal dismissed - no error of sentencing principle identified - sentence imposed within the range of appropriate sentences for offending of this nature - open to the Judge to conclude that the offence was too serious for a conviction not to be recorded - reduction made on account of defendant's guilty plea within appropriate range.

Controlled Substances Act 1984 (SA) s 4 and s 33l(1)(b); Misuse of Drugs Act 1971 (UK) s 4 and s 5; Drug Misuse and Trafficking Act 1985 (NSW) s 3 and s 25(1); Acts Interpretation Act 1915 (SA) s 22(1); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11 and s 39, referred…

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R v Urbanski [2010] SASCFC 57
Case
[2010] SASCFC 57
Decision Date

CaseChat Overview and Summary

The appeal concerned Joshua Ryszard Urbanski, who pleaded guilty to possessing a controlled drug for supply contrary to section 33I(1)(b) of the Controlled Substances Act 1984 (SA). The dispute arose from Urbanski's possession of 18 ecstasy tablets, where the agreed factual basis was that he had purchased nine of them and intended to return the remaining nine to the individual from whom he purchased them. The appeal was heard by Duggan, Gray, and Kelly JJ of the Supreme Court of South Australia.

The central legal issue before the court was whether the intended return of the nine ecstasy tablets to their original owner constituted "supply" within the meaning of the Controlled Substances Act. This required the court to interpret the definition of "supply" in the context of the Act and its purpose, particularly in relation to the transfer of physical control of a drug.

The court reasoned that the criminal law, particularly drug legislation, is concerned with preventing the dissemination of drugs and focuses on criminally culpable conduct and the intention of the possessor. Analogies with property or contract law, such as ownership or bailment, were deemed inappropriate in this criminal context. The court adopted the approach that "supply" encompasses any transaction involving the transfer of physical control of a drug from one person to another, irrespective of questions of ownership or legal possession. The court found that Urbanski's intention to return the nine tablets to Bartosz involved a transfer of physical control, and therefore amounted to possession for the purpose of supply, as he was not in possession for personal use or trafficking.

The appeal against conviction was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

This appeal raises important and difficult questions concerning the meaning of “supply”, the intended breadth of the definition of that term in the Controlled Substances Act, and the purposes of that Act. Background On 27 September 2008, the defendant and appellant, Joshua Ryszard Urbanski was apprehended by police in possession of 18 ecstasy tablets outside a dance event being held in the Botanic Gardens, Adelaide. He was in the company of another man, Bartosz. Earlier that day, and by prior arrangement, the defendant had purchased 10 tablets containing “3,4-Methylendioxymethylamphetamine” (ecstasy) from Bartosz. At that time, Bartosz was in possession of 20 tablets, from which number the purchase of 10 was made. Both men then consumed one tablet each before travelling together to the dance event. The remaining 18 tablets were in the one bag, which was retained by the defendant. The intention was that the defendant would return nine of the 18 tablets to Bartosz. The intended return of the nine tablets was the subject of the charge. There was no suggestion that, other than returning the nine tablets to Bartosz, the defendant intended to further sell or supply the tablets. There was no suggestion that the defendant knew that Bartosz would do anything other than use the drugs himself. At trial, the defendant initially maintained that the circumstances did not amount to the defendant having an intention to supply a controlled substance. However the defendant then altered his position and accepted that the facts as alleged by the prosecution and agreed by the defendant, amounted to an intention to supply. As a consequence he pleaded guilty to that offence. The sentencing Judge summarised the facts and the circumstances of the plea as follows:On 27 September 2008 you went to a large event at the Botanic Gardens. Police officers who were monitoring the entrance noticed yourself and another person behaving suspiciously. They approached you and inquired whether you were carrying any drugs. You produced from the band of your trousers a small plastic bag containing 18 tablets.You were interviewed and told the police officers that you were going to take the 18 tablets yourself and that you were not going to give them to anybody. You also said that you had no intention to sell them. You said that you purchased them for $20 each. Later, you told the police officers that the tablets were for everybody, that is, your friends, one of whom was a man called Bartosh [sic]who you said would probably take three or four.Initially you entered a plea of not guilty. Your story changed again and your defence became that only nine of the tablets were yours and the remaining nine belonged to Bartosh [sic] and were to be returned to him. The fact that you changed your story in that way gives one cause to think as to whether anything that you say can be believed.Your counsel referred me to the cases which supported your argument that you were not in possession of the drugs for supply. She told the court that you changed your plea for health reasons.The word ‘supply’ is defined in the Act which catches your activity, although I am satisfied that there was a point for argument.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J (dissent)
The law of property and contract is not designed to deal with criminal situations. Similarly, the criminal law is concerned with conduct, rather than concepts such as a right to possess. The criminal law addresses criminally culpable conduct. In this case the Controlled Substances Act operates to prevent the dissemination of drugs. The legislation is concerned with the intention of a person in possession. Although many of the authorities speak of the effect of ownership, indeed some draw an analogy with bailment, in my view this is inappropriate. If such concepts are introduced into the inquiry, there is a danger of recognising a state of affairs that simply does not exist in the criminal law. As the English Court of Appeal said in Delgado:[69]Thus we are driven back to considering the word "supply" in its context. The judge himself relied upon the dictionary definition, which is a fairly wide one. This court has been referred to the Shorter Oxford English Dictionary, which gives a large number of definitions of the word "supply," but they have a common feature, viz: that in the word "supply" is inherent the furnishing or providing of something which is wanted.In the judgment of this court, the word "supply" in section 5(3) of the Act of 1971 covers a similarly wide range of transactions. A feature common to all of those transactions is a transfer of physical control of a drug from one person to another. In our judgment questions of the transfer of ownership or legal possession of those drugs are irrelevant to the issue whether or not there was intent to supply.[Emphasis added][69] R v Delgado [1984] 1 WLR 89 at 92. For these reasons the example of borrowing a lawn mower is inappropriate in circumstances of criminal possession. As Lord Keith observed in Maginnis.[70]…One who deposits controlled drugs of which he is in unlawful possession with a temporary custodier has no legal right to require the drugs to be handed back to him. Indeed it is the duty of the custodier not to hand them back but to destroy them or to deliver them to a police officer so that they may be destroyed. The custodier in choosing to return the drugs to the depositor does something which he is not only not obliged to do, but which he has a duty not to do. Any analogy with bailment is false in a situation where the depositor has no right to ownership which the law would recognise and certainly none to immediate possession.[70] R v Maginnis [1987] 1 AC 303 at 312-313. As a consequence, insofar as it is necessary for me to do so, I would prefer the approach of the majority in Maginnis, as expressed by Lord Keith. I would not follow the approach taken by Lord Goff and applied by the Court in Carey. In the criminal law a person may be in possession of a controlled substance generally for one of three reasons - personal use, trafficking or supply. In this case the defendant was not in possession of nine of the tablets for his personal use or for trafficking. Although not determinative of the issue, this supports the conclusion that the defendant was in possession of those tablets for the purpose of supply.

Ratio Decidendi

Legal Principle Established

Established by:

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