The State of Western Australia v Read

[2018] WADC 157

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- READ [2018] WADC 157

CORAM:   PETRUSA DCJ

HEARD:   21 NOVEMBER 2018

DELIVERED          :   Ex tempore

FILE NO/S:   IND 1036 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

JOHN AARON READ

Catchwords:

Criminal law - Declaration that a person is a 'drug trafficker' under s 32A(b)(i) of the Misuse of Drugs Act - Whether offender convicted of an offence 'in respect of a prohibited drug in a quantity not less than the quantity specified in Schedule VII in relation to a prohibited drug' - Whether quantity refers to pure weight LSD or weight of LSD tab

Legislation:

Medicine and Poisons Act 2014 (WA), s 3, s 4
Medicine and Poisons Regulations 2016, reg 3, reg 6
Misuse of Drugs Act 1981 (WA), s 32A(b)(i), s 3, s 4

Standard for the Uniform Scheduling of Medicines and Poisons No 16, cl 1, sch 9, appendix A

Result:

Declaration for drug trafficker granted

Representation:

Counsel:

Applicant	:	Ms B Rositano
Accused	:	Ms E Targowski

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Legal Aid

Case(s) referred to in decision(s):

R v Elrayes (2012) 219 A Crim R 567

Reid v Director of Public Prosecutions (WA) (2012) A Crim R 100

PETRUSA DCJ:

[This decision was delivered extemporaneously on 21 November 2018 and edited from the transcript.]

1. On the 25 January this year you were convicted and sentenced on your plea of guilty for one count of possession of LSD with intent to sell or supply and two counts of attempted possession of MDMA with intent to sell or supply. Count 1 related to 73 LSD tabs located at your home. When you were sentenced an application was made pursuant to s 32A(b)(i) of the Misuse of Drugs Act 1981 (MDA) that you be declared a drug trafficker in respect of the conviction relating to the LSD.  That application was adjourned sine die.  I am now asked to make the order.  The application is not opposed.

2. I am required to make the order if I am satisfied that the offence is a serious drug offence in respect of a 'prohibited drug in a quantity which is not less than the quantity specified in sch VII in relation to the prohibited drug'.  The relevant quantity of LSD as set out in the sch VII is 0.01 g. 

3. It is not in dispute that the certificate of approved analyst states that the total weight of the 73 tabs, or paper squares as they are described, was 1.16 g. The LSD content of those squares was a total of 0.00383 g. The issue to be determined is what is the relevant weight for the purposes of s 32A(b)(i) MDA – the pure weight of the LSD or the total weight of the paper squares which contained the LSD?

4. In Reid v Director of Public Prosecutions (WA) (2012) A Crim R 100 McLure P and Beech J with Pullin JA dissenting determined that the expression 'prohibited drug' in s 32A(b)(i) and s 9 and s 11 of the MDA included an admixture containing any proportion of the relevant prohibited drug. In arriving at this conclusion the legislative history and framework and course of authority were considered.

5. In my view the relevant weight is the paper squares containing the LSD because they constitute an admixture.  The Shorter Oxford English Dictionary defines an 'admixture' as 'something mixed with something else' and 'mixed' as 'mingled or blended together'.  The impregnation of the LSD into the paper squares fits these definitions. 

6. In considering what constitutes an admixture I was also referred to the case of R v Elrayes (2012) 219 A Crim R 567. Elrayes was a case involving a referral of questions to the Court of Criminal Appeal (SA) on a similar issue.  Gray J set out the findings made by the judge at first instance to provide the factual context for the questions referred.  The findings were made after hearing evidence from a senior forensic scientist at Forensic Science SA and a pharmacologist referrable to admixtures namely that:

   (i)'Mixture' can mean a mechanical mixture where there is only a physical interaction between substances, or it can mean a combination of substances where chemical bonding takes place so that there is a chemical as well as a physical interaction.

   (ii)'Admixture' refers to the mechanical mixing, where there is only a physical mixing and no chemical interaction.

   (iii)A salt is a mixture between the base and the acid, but it is not an admixture because there has been a chemical interaction.

7. This analysis is consistent with the dictionary definition and consistent with the common understanding that the LSD is impregnated onto the paper square for the purposes of consumption in the same way one would consume a tablet or capsule.

8. Since the decision in Reid there have been amendments to the legislative provisions.  The relevant provisions are set out in the State's written submissions at par 10.  Those provisions can be summarised in this way:

   1.A 'prohibited drug' includes 'drugs of addition' which term means a " 'Sch 9 poison' as defined in the Medicines and Poisons Act 2014 section 3"; see s 3(1) and s 4(1) MDA.

   2.A 'Sch 9 poison' means a substance classified by regulations made under s 4(1) Medicines and Poisons Act 2014 as a poison included in Sch 9.  'Substance' is itself defined to include a compound, preparation, mixture or plant.

   3.Reg 6 of the regulations made under s 4(1) Medicines and Poisons Act 2014 relevantly provides that Sch 9 of that Act is a substance, other than an exempt substance, listed in the SUSMP Sch 9. 

   4.An 'exempt substance' is relevantly defined as a poison in a product listed in the SUSMP Appendix A; see reg 3(1).

   5.The Medicines and Poisons Act Regulations 2016 also adopt the definitions and interpretations as set out in the SUSMP; see reg 3(2).

   6.Lysergide is included in Sch 9 SUSMP.  As Mosby's Medical, Nursing and Allied Health Dictionary makes clear lysergide is a synonym for lysergic acid diethylamide (LSD).

   7.Clause 1(2)(g) of the SUSMP, being part of the interpretation section of the Standard, provides that unless the contrary intention appears a reference to a substance in a Schedule or an Appendix to the Standard includes a preparation or admixture containing any proportion of the substance. 

   8.Clause 1(2)(g) does go on to exclude some matters including at cl 1(2)(h) 'a preparation or product included in Appendix A'.  This is consistent with the definition of 'exempt substance' in the Medicines and Poisons Regulations 2016. Appendix A says that it does not apply to a poison in any of the listed products.  The list includes paper except when it contains a poison included in sch 8 or 9.  Paper containing Lysergide, a sch 9 poison, is therefore NOT excluded and is not an 'exempt substance'.

9. When one compares the provisions in the current Scheme to that analysed in Reid there is no material difference.  Consistent with the decision of the majority in Reid the expression prohibited drug in s 32A(b)(i) MDA includes an admixture containing any proportion of the drug. The relevant weight of the LSD is this case is 1.16 g. Accordingly the quantity of the prohibited drug exceeds the quantity referred to in sch VII of 0.01 g and therefore I declare you to be a drug trafficker in respect of count 1 on indictment 1036 of 2017.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

MS
ASSOCIATE TO JUDGE PETRUSA

22 NOVEMBER 2018