The Queen v Paton
[2020] NTSC 82
•31 December 2020
CITATION:The Queen v Paton [2020] NTSC 82
PARTIES:THE QUEEN
v
PATON, Ramon David
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21936771
DELIVERED: 31 December 2020
HEARING DATE: 9 June 2020
JUDGMENT OF: Barr J
CATCHWORDS:
STATUTORY INTERPRETATION – Offence contrary to s 6(1) Misuse of Drugs Act 1990 (NT) – Cultivation of prohibited plant – Cannabis plants – Offence committed if a person “intentionally cultivates, or takes part in the cultivation of, a plant” – A person ‘takes part’ in the cultivation of a cannabis plant if the person permits a step in the cultivation to be taken on premises of which the person is the owner or occupier – The words “or takes part in the cultivation of” state an alternative to “cultivates”, not an alternative to “intentionally cultivates” – the offence of taking part in the cultivation of a prohibited plant requires intentional taking part
Misuse of Drugs Act 1990 (NT), s 3(6)(c), s 4C, s 6(1)
REPRESENTATION:
Counsel:
Crown:G Dooley
Accused:A Glynn QC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Ward Keller Solicitors
Judgment category classification: B
Judgment ID Number: Bar2009
Number of pages: 4
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSThe Queen v Paton [2020] NTSC 82
No. 21936771
BETWEEN:
THE QUEEN
AND:
RAMON DAVID PATON
CORAM: BARR J
REASONS FOR RULING
(Delivered 31 December 2020)
The accused was charged on indictment with two counts contrary to s 6 Misuse of Drugs Act 1990 (NT). The alleged offending took place on 3 May 2019 and 25 September 2019, Tennant Creek. Count 1, relating to the May offending was as follows:
On 3 May 2019, at Tennant Creek in the Northern Territory of Australia intentionally took part in cultivation of a plant, reckless as to the plant being a prohibited plant, and the quantity of the prohibited plant was a commercial quantity.
Particulars of plant: Cannabis
Contrary to s 6(1) of the Misuse of Drugs Act.
Apart from the date difference, the charges were identical.
Pleas of guilty were indicated at an early time and the case was listed on 9 June 2020 for entry of plea, facts and submissions.
Shortly prior to the accused being arraigned, the Crown prosecutor applied to amend the charges so as to delete the word “intentionally”. The application was supported by defence counsel, Mr Glynn QC, who indicated the willingness of the accused to plead to the amended counts.
I expressed my concern that, if the counts were amended by deletion of the word “intentionally”, they would no longer charge an offence known to the law and the Court would arguably not have jurisdiction. I then heard submissions from the Crown prosecutor and from defence counsel.
The Misuse of Drugs Act, s 6(1) provides as follows:
6 Cultivation of prohibited plant – commercial quantity
(1) A person commits an offence if:
(a)the person intentionally cultivates, or takes part in the cultivation of, a plant; and
(b)the plant is a prohibited plant and the person is reckless in relation to that circumstance; and
(c)a commercial quantity of the prohibited plant is cultivated.
Maximum penalty: Imprisonment for 25 years.
(2) Absolute liability applies to subsection (1)(c).
A “Cannabis plant” is a ‘prohibited plant’ within the definition contained in s 3 (1) of the Misuse of Drugs Act.
Section 3(6)(c) of the Misuse of Drugs Act relevantly provides that a person ‘takes part’ in the cultivation of a dangerous drug if the person permits a step in the cultivation to be taken on premises of which the person is the owner or occupier.[1]
Counsel explained that the reason for the proposed amendment was that the accused’s role in the cultivation was, in effect, a passive one; he played no part other than permitting his property to be used by a co-offender who carried on the cultivation, and he stood to gain nothing or very little himself.
Senior counsel for the accused submitted that, on its proper interpretation, s 6(1)(a) created two offences: (1) the offence of intentionally cultivating a prohibited plant, and (2) the offence of taking part in the cultivation of a prohibited plant. He submitted that the second of those did not require that an offender intentionally take part in the cultivation.
In my opinion, the submitted interpretation (that “intentionally” applied only to “cultivates”) was wrong. Contrary to the submission summarized in the previous paragraph, I ruled that the offence of taking part in the cultivation of a prohibited plant required intentional taking part. The words “or takes part in the cultivation of” state an alternative to “cultivates”, not an alternative to “intentionally cultivates”. As a result, the word “intentionally” applies to both the offence of cultivating and the offence of taking part in the cultivation.
Both counsel accepted my ruling. The accused entered pleas of guilty and I proceeded to hear facts and submissions.
It occurred to me subsequently that, if the submission of Mr Glynn QC were correct, the situation would then be that s 6(1)(a) created the offence of taking part in the cultivation of a prohibited plant without specifying a fault element. In that case, because s 4C Misuse of Drugs Act provides that Part IIAA of the Criminal Code 1983 (NT) applies to an offence against the Act, s 43AM Criminal Code would apply. Section 43AM(1) provides as follows:
If a law that creates an offence does not provide a fault element for a physical element that consists only of conduct, intention is the fault element for the physical element.
The result would be that, even if s 6(1)(a) were interpreted in the manner submitted by senior counsel for the accused, intention would – by default – be the fault element.
-------------------------------
[1] The subsection refers to the cultivation of a dangerous drug. A “dangerous drug” is defined in s 3(1) of the Act to mean a Schedule 1 drug or a Schedule 2 drug. In addition to being a ‘prohibited plant’, a Cannabis plant is a Schedule 2 ‘dangerous drug’.
0
0
0