Shafto v The State of Western Australia
[2020] WASCA 102
•25 JUNE 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SHAFTO -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 102
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 17 JUNE 2020
DELIVERED : 25 JUNE 2020
FILE NO/S: CACR 53 of 2020
BETWEEN: ANDREW MICHAEL SHAFTO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: O'NEAL DCJ
File Number : IND 145 of 2019
Catchwords:
Criminal law - Drug offences - Appeal against sentence - Conviction of simple possession of methylamphetamine after trial - Acquittal of possession with intent to sell or supply to another person - Whether trial judge sentenced the appellant on a factual basis which was inconsistent with the jury's verdict
Legislation:
Misuse of Drugs Act 1981 (WA), s 6, s 11
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | G C R Yin |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | DG Price & Co |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425
Head v The State of Western Australia [2020] WASCA 21
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
JUDGMENT OF THE COURT:
Summary
The appellant was charged with a number of offences, which relevantly included one count of possession of methylamphetamine with intent to sell or supply to another person. He was acquitted of that offence after a trial by jury, but convicted of the alternative offence of simple possession of the methylamphetamine. The appellant was sentenced to 10 months' immediate imprisonment in respect of the drug offence, as part of a total effective sentence of 22 months' immediate imprisonment for all the offences.
The prosecution case at trial was that the appellant possessed about 65 g of methylamphetamine which was found in a search of his vehicle, when it was parked outside his mother's house. The appellant formally admitted being in possession of the methylamphetamine.[1] The effect of his evidence was that he had stolen bags containing the drugs the day prior to the police search, not initially appreciating that they contained drugs. When he discovered the drugs, he wanted to flush them down the toilet. However, he argued about what to do with the drugs with his partner, who wanted him to take the drugs to police. The appellant's evidence was that the argument was not resolved by the time the police executed their search warrant.
[1] Exhibit 9; trial ts 121.
The trial judge sentenced the appellant on the basis that 'the jury accepted that you were in a state of indecision as to what to do with the methylamphetamine that was admittedly in your possession'. His Honour was 'not able to say one way or another' what the appellant 'would ultimately have done with the methylamphetamine'. His Honour expressly accepted, for the purposes of sentencing, 'the core fact that when the police found those drugs, [the appellant] did not have an intention to sell or supply them'.[2]
[2] Trial ts 293.
The appellant appeals against his sentence on the sole ground that the trial judge erred in fact by failing to sentence the appellant in accordance with the evidence he gave about his intention in relation to the methylamphetamine. The appellant contends that the jury must have accepted his evidence that, at the time of the police raid, he had the intention to either dispose of the methylamphetamine or hand the drugs over to police. The appellant contends that the findings made by the trial judge were inconsistent with the jury's verdict.
In our view, the ground of appeal is not established, and the appeal should be dismissed.
Statutory provisions relevant to the determination of the appellant's guilt
Section 6 of the Misuse of Drugs Act 1981 (WA) (Drugs Act) relevantly provides:
6. Offences concerned with prohibited drugs generally
(1)A person commits a crime if the person -
(a)with intent to sell or supply it to another, has in his or her possession a prohibited drug; …
(2)A person who has in his or her possession … a prohibited drug commits a simple offence.
(3)A person does not commit a crime under subsection (1) or a simple offence under subsection (2) by reason only of the person having in his or her possession a prohibited drug if the person proves that - …
(b)he or she had possession of the drug only for the purpose of delivering it to a person authorised to possess the drug under this Act … and he or she took all reasonable steps to deliver the drug to the person[.]
For the purposes of s 6 of the Drugs Act, to 'supply' includes to:[3]
deliver, dispense, distribute, forward, furnish, make available, provide, return or send[.]
[3] Misuse of Drugs Act, s 3.
A police officer is authorised to seize and detain a prohibited drug under s 26(1)(a) of the Drugs Act. As this court recently noted in Head v The State of Western Australia,[4] s 6(3)(b) of the Drugs Act exempts a person who has possession of a prohibited drug only for the purpose of delivering it to an authorised person, such as a police officer, from criminal liability. Section 6(3)(b) of the Drugs Act requires an accused, whose possession of a prohibited drug has been established by the prosecution beyond reasonable doubt, to prove on the balance of probabilities that:
(a)he or she had possession of the prohibited drug only, that is exclusively, for the purpose of delivering it to a police officer; and
(b)he or she took all reasonable steps to deliver the prohibited drug to the police officer.
[4] Head v The State of Western Australia [2020] WASCA 21 [14] - [18].
As was also noted in Head, an intention to give prohibited drugs to a police officer would be a 'supply' of the drugs to another person for the purposes of s 6(1)(a) of the Drugs Act.[5]
[5] Head [35].
Under s 11(a) of the Drugs Act, for the purposes of s 6(1)(a) of that Act:
a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.
The quantity of methylamphetamine specified in sch V to the Drugs Act is 2 g.
Once the fact of possession of more than the specified quantity is proved beyond reasonable doubt or, as in this case, admitted, the prosecution has no other onus to discharge in relation to the element of intention. The onus then falls to the accused to establish on the balance of probabilities that, on the whole of the evidence at the trial, he or she did not intend to sell or supply the drug to another.[6]
[6] Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 [4].
Issues at trial
The appellant formally admitted that he was in possession of the methylamphetamine. He did not seek to prove a defence under s 6(3)(b) of the Drugs Act, and, as it was clear that he had not taken all reasonable steps to deliver the methylamphetamine to a police officer, the defence was not raised by the evidence. The quantity of methylamphetamine in his possession was 65 g, well in excess of the quantity specified in sch V to the Drugs Act. The presumption in s 11 of the Drugs Act was engaged.
The issue for the jury was therefore whether the jury were satisfied, on the balance of probabilities, that, at the time of the police raid, the appellant did not intend to sell or supply the methylamphetamine to another person. The appellant could discharge that onus by satisfying the jury that he intended to do something with the methylamphetamine other than sell or supply it to another person. He could also discharge that onus by satisfying the jury that he had not formed any intention as to what to do with the drugs.
If the appellant intended to dispose of the drugs by flushing them down the toilet, then he would not have intended to sell or supply them to another person. If the jury were satisfied of that fact on the balance of probabilities on the whole of the evidence in the trial, then they would properly find him not guilty of an offence against s 6(1)(a) of the Drugs Act.
If the appellant intended to give the drugs to a police officer, then he would have an intention to supply them to another person. In that event, subject to the defence in s 6(3)(b), he would have committed an offence against s 6(1)(a) of the Drugs Act. Therefore, even if the jury found that the appellant intended to give the drugs to police, they would still properly have found the appellant guilty of an offence against s 6(1)(a) of the Drugs Act in the circumstances of this case (where no defence under s 6(3)(b) was advanced or raised by the evidence). The same analysis would apply if the appellant intended to give the drugs to his partner for the purpose of her taking the drugs to police.
If the appellant was undecided as to what to do with the drugs at the time of the police raid, in that he was undecided as to whether or not to destroy the drugs, then he would not at that time have formed an intention to sell or supply them to another person. If the jury were satisfied on the balance of probabilities, on all of the evidence in the trial, that the appellant had not decided what he would do with the drugs, they would properly find him not guilty of an offence against s 6(1)(a) of the Drugs Act.
Fact finding on sentencing
The respective roles of the trial judge and the jury were explained in the following terms by the plurality in Cheung v The Queen:[7]
The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and in so far as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability.
[7] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [5].
Generally speaking,[8] a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted.[9]
[8] Cf Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425.
[9] Chiro [52], [70], [83] - [85]; Cheung [14] - [17], [98] - [99], [162] - [163]; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [24].
Evidence as to the appellant's intention
The appellant's evidence at trial was that he had taken a gun and two little bags from the car driven by men with whom he had an altercation, and put them in his ute. He had then driven to his mother's house and opened the bags, seeing that they contained money and what he knew was methylamphetamine. When he saw the drugs, he thought '[t]hat ain't good'.[10] He closed the bags back up and tended to his mother, before going home and telling his partner what had happened, which 'didn’t go down too good'.[11]
[10] Trial ts 154.
[11] Trial ts 155.
The appellant gave evidence of a conversation with his partner to the following effect:[12]
She said, 'What are you going to do with it?' And I said, 'I don't know, I'll flush that shit [the methylamphetamine] down the toilet, the money, might not keep it.'
[12] Trial ts 157.
The appellant said that he did not really know what to do with the gun.[13] He said that it:[14]
Had to go, that's for sure. But I wasn't taking it to the cops, let's put it that way.
When asked why he did not want to take the rifle to police, the appellant responded:[15]
Well, I don't really like cops anyway. And I thought I'd just be dragged into a shit fight. I'd be charged, stuff like that.
[13] Trial ts 157 - 158.
[14] Trial ts 157.
[15] Trial ts 158.
The appellant gave evidence that he was thinking of keeping the cash. The appellant gave the following evidence as to what he was thinking of doing with the methylamphetamine:[16]
All right. And what were you thinking of doing with the meth?---Well, you have to get rid of that and I was - I wanted to flush it.
Why?---Hey?
What do you mean get rid of it?---Well, so no one else can use it.
And so what - what was the conversation with [your partner] about?---How to dispose of it all. She wanted to keep - get rid of the lot but like I said before, she doesn't even have a parking ticket. She wanted even the money gone and I tend to listen to her opinion a lot. But we had a pretty big argument, like, and I couldn't see the big deal about money.
What did she want to do with those things?---She wanted all of them taken to the cops herself and I wasn't even keen on that. Cos she'd have to tell them, yeah, whatever, and she can't lie. Couldn't lie straight in bed.
All right. So how did that discussion end up?---Like, me keeping all the stuff in the ute and going to me mum's …
[16] Trial ts 158.
The appellant said that he returned to his mother's because his partner 'didn't like nothing … on her property'. The appellant's evidence was:[17]
She wanted to discuss it more, the next day, when she finishes work. She reckons she could convince me to get rid of the lot. I wish I did. But didn't happen. So I went to my mum's.
[17] Trial ts 158.
The appellant then described his movements before the arrival of the police.
In cross-examination, the appellant gave the following evidence about his planned discussion with his partner:[18]
[18] Trial ts 192 - 193.
We were going to talk about it the next day when we'd cooled down a bit, and I just believe she probably - may have won the argument when we talked about it again. Until then, we didn't really say a lot.
So she wanted to take it to the police?---Yeah.
And you wanted to keep it?---I wanted to destroy it.
You wanted to destroy it?---Yeah.
By destroy it, what - what do you mean?---I just would have flushed it.
And so I - I assume at this stage you're not talking about flushing the firearm?---To be honest, that was a sticking point. I didn't know what to do with that. I think in the end I might have come up with something stupid like leave it outside a cop shop, Cannington cop shop door, maybe, I don't know - like, put it in there and run. I don't know. I didn't really ever plan for that. That's why I probably - [my partner] would have won the argument and took the lot, yeah.
So when you say 'flushed it', you're talking about the methylamphetamine?---Toilet. Yeah, yeah, yeah.
But you didn't do that, did you?---No.
You kept it in the car?---Yeah.
Kept it all in the car?---Yeah.
And you went to your mum's?---Yeah.
Later, the following exchange occurred in cross-examination:[19]
So why didn't you want to keep the methylamphetamine?---Why didn't I? A couple of reasons.
What - what are those?---Well, one, it's shit. It just - trouble comes with it. I didn't really want to be caught with it by the cops.
So why didn't you get rid of it at that time then?---Because my - - -
Why didn't you flush it down the toilet?---In hindsight, I should have, but like I said, my - my missus is - she - well, basically I do what she says.
But she wanted to get rid of it?---She wanted to go to the cop shop, and, well, I wasn't too sure about that.
[19] Trial ts 194 - 195.
The appellant's partner gave evidence that broadly supported his version of events. However, her evidence was that she begrudgingly agreed that the appellant could keep the money, and the appellant agreed that he would bring the drugs back to her the next day after she finished work and she would take them to the police.[20]
[20] Trial ts 218.
The trial judge's direction to the jury
In directing the jury as to the elements of the offence against s 6(1)(a) of the Drugs Act, the trial judge told the jury that the only element of the offence which was in issue was the element of intention to sell or supply.[21] As to that element, the trial judge directed the jury that:[22]
The State has to prove that [the appellant] intended to sell or supply these drugs or some of them to another person. The words, 'to sell' are used in their ordinary meaning of to exchange for money. You'd have no difficulty understanding what that was.
The words, 'to supply', as a matter of law, include to deliver, forward or furnish, to make available, to return or descend [sic] and to provide. And it doesn't matter on whose behalf the thing is being supplied. For example, somebody who agrees to deliver something for someone else is supplying something onwards. You don't have to own something yourself to supply it to someone else.
[21] Trial ts 241.
[22] Trial ts 243.
The trial judge then directed the jury as to the presumption under s 11 of the Drugs Act, and that, if they were satisfied that the appellant possessed the 65 g of methylamphetamine, he must prove that it was more probable than not that he did not intend to sell or supply the methylamphetamine, or any of it, to another.[23]
[23] Trial ts 243 - 244.
After summarising the parties' submissions, the trial judge instructed the jury:[24]
Members of the jury, [the appellant] has admitted possession of the 65 grams of methylamphetamine that police found in the ute. You've heard his evidence where he denied any intention to sell or supply the drugs. If you were to accept that, you would, of course, acquit him of the charge of possession with intent to sell or supply but you would be entitled, on the evidence, to find him guilty of possession, alone.
If what he said in his evidence, either alone or together with any other evidence in the trial, leads you to conclude that he probably did not intend to sell or supply any of the methylamphetamine, then, again, you must acquit him of possession with intent to sell or supply. You would still find him not guilty as charged, since he has admitted possession. You would still find him guilty of possession, alone.
On the other hand, … if, on all of the evidence in this trial, [the appellant] has not persuaded you that he probably did not intend to sell or supply any part of these drugs, then a true verdict would be guilty as charged.
[24] Trial ts 248.
Disposition
The appellant's evidence, taken as a whole, did not establish on the balance of probabilities an intention to dispose of the drugs. Although that was expressed as his wish or desire, the ultimate fate of the drugs was, on the evidence most favourable to the appellant, left up in the air after the argument with his partner, pending further discussion the next day.
On the evidence of the appellant's partner, it was agreed that the appellant would give her the drugs the next day and she would take them to police. If that evidence had been accepted, it would have involved the appellant supplying the drugs to her, so that (in the absence of a defence under s 6(3)(b)) he would be guilty of an offence against s 6(1)(a) of the Drugs Act. If that evidence had been accepted then, applying the trial judge's direction, the jury would properly have found the appellant guilty of an offence against s 6(1)(a) of the Drugs Act.
In our view, the jury's verdict is consistent with acceptance of the appellant's evidence to the effect that, up to the time of the police raid, he was undecided as to what he would do with the drugs. Left to his own devices, he may have flushed the drugs down the toilet but was in a state of indecision given the reaction of his partner. In our view, the trial judge's finding that the appellant was 'in a state of indecision as to what to do about the methylamphetamine' reflected the appellant's evidence and was consistent with the jury's verdict.
In any event, the appellant's counsel accepted that an essential step in his argument was that, on the facts of this case, the jury's verdict of 'not guilty' necessarily amounted to acceptance of everything the appellant said he was going to do with the drugs. We do not accept that submission.
The jury's verdict carried with it a conclusion about the appellant's intention in relation to the methylamphetamine at the time he was in possession of the drugs. That conclusion, to which the trial judge gave effect, was that the appellant did not have an intention to sell or supply the methylamphetamine to another at the time of the police raid. The jury's verdict did not necessarily involve any conclusion that the appellant intended to do something with the drugs that did not amount to selling or supplying any of them to another.
Nor did the jury's verdict necessarily involve any conclusion as to what would have actually happened to the drugs had the police not executed the search warrant when they did. Even if the jury found that the appellant intended to dispose of the drugs at the time of the police raid, they were not required to reach any conclusion as to whether and when the appellant would have put that intention into effect. The jury's verdict did not require the trial judge to reach any particular view as to what the appellant would actually have done with the drugs if the police had not intervened. There was no inconsistency between the jury's verdict and the trial judge's inability 'to say one way or another what [the appellant] would ultimately have done with the methylamphetamine'.
For these reasons, in our view, it has not been established that the trial judge erred by sentencing the appellant on a factual basis that was inconsistent with the jury's verdict, or the appellant's evidence, as alleged by the sole ground of appeal.
Orders
In our view, the sole ground of appeal is without merit. We would refuse leave to appeal and dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell25 JUNE 2020
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