The State of Western Australia v Watkins - [2021] WADC 91

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WATKINS [2021] WADC 91
CORAM:   PETRUSA DCJ
HEARD:   6 AUGUST 2021
DELIVERED          :   Ex tempore
PUBLISHED           :   28 SEPTEMBER 2021
FILE NO/S:   IND 577 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
KIAN PHILIP WATKINS

Catchwords:

Criminal law - Declaration that a person is a 'drug trafficker' under section 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 in Schedule VII in relation to a prohibited drug' - Whether quantity refers to weight capsule and its contents or contents of capsule alone

Legislation:

Misuse of Drugs Act 1981 (WA), s 32A(b)(i)

Result:

Declaration for drug trafficker granted

Representation:

Counsel:

The State of Western Australia	:	Mr J J Walsh
Accused	:	Ms K J Louden

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Jeremy Noble Barristers & Solicitors

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

Calabria v The Queen (1983) 151 CLR 670
Director General of the Department of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306
KJL v The State of Western Australia [2021] WASCA 65
Lenton v The State of Western Australia [2017] WASCA 224
R v Elrayes (2012) 219 A Crim R 567
R v Punevski [2001] WASCA 121
Reid v Director of Public Prosecutions (WA) [2012] WASCA 190; (2012) 224 A Crim R 100
The State of Western Australia v Egeland [2018] WASCA 228
The State of Western Australia v Read [2018] WADC 157
Valerio v The State of Western Australia [No 2] [2018] WASCA 158; (2018) 274 A Crim R 253

PETRUSA DCJ:

[This decision was delivered extemporaneously on 23 September 2021 and edited from the transcript.]

On 6 August this year Mr Watkins was convicted on his own pleas of guilty of two counts of possession of a prohibited drug with intent to sell or supply. Count 1 related to 286 capsules of MDMA located in a grey duffle bag found in his wardrobe. At the time of sentencing an application was made on the basis of his conviction of count 1 that he be declared a drug trafficker pursuant to s 32A(b)(i) of the Misuse of Drugs Act 1981 (WA) (MDA). The application was opposed.
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 that is not less than the quantity specified in sch 7 in relation to the prohibited drug'. The relevant quantity of MDMA is 28 grams.
The issue is how the weight of the prohibited drug is calculated in circumstances where the MDMA is in capsule form. The State contend that the relevant weight is the weight of the capsule and its contents. The offender contends that it is the weight of the MDMA inside the capsule alone. In this case the total weight of the capsule and its contents is 55.42 grams whilst the nett weight of the contents of the capsule is 26.82 grams.
It is common ground that the meaning of prohibited drug for the purposes of sch 3, sch 5 and sch 7 includes 'a preparation or admixture containing any proportion of the drug': see Reid v Director of Public Prosecutions (WA) [2012] WASCA 190; (2012) 224 A Crim R 100. The issue then is whether a capsule containing MDMA is 'a preparation or admixture containing any proportion of the drug'. If the capsule containing the MDMA is either 'a preparation' or 'an admixture' the drug trafficker declaration must be made.
The terms 'admixture' and 'preparation' are not defined in the Misuse of Drugs Act, the Medicines and Poisons Act 2014 (WA), the Medicines and Poisons Regulations 2016 (WA) or the Standard for the Uniform Scheduling of Medicines and Poisons No. 16 (SUSMP).
The general principles of statutory construction therefore apply. Those principles were conveniently summarised by his Honour Buss P in Director General of theDepartment of Transport v McKenzie [2016] WASCA 147; (2016) 77 MVR 306 [45] - [48] (Murphy JA & Beech J agreeing). As his Honour makes clear at [48]:
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 [26] (French CJ & Hayne J). The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd [2005] HCA 9; (2005) 222 CLR 194 [21] (Gleeson CJ, Hayne, Callinan & Heydon JJ).
I had cause to consider this same issue in the context of LSD tabs in TheState of Western Australia v Read [2018] WADC 157. I concluded that the paper squares containing the LSD were an admixture and therefore the total weight of the paper and LSD was the relevant weight for the purposes of s 32A. At [5] - [6] of that decision I set out the relevant meanings of admixture as found in the Shorter Oxford Dictionary and in the South Australian case of R v Elrayes (2012) 219 A Crim R 567. These definitions make it clear that the key feature of an admixture is a 'mingling' or 'blending together' of substances irrespective of whether that involves any chemical bonding. In my view it cannot be said that this has occurred when MDMA is placed inside a capsule. A capsule containing MDMA is then not an admixture.
In the relevant provisions, the words 'preparation' and 'admixture' are separated by the word 'or'. 'Or' is used disjunctively, thus connoting that a 'preparation' and an 'admixture' are different albeit there may be some overlap.
So I turn to consider whether MDMA in capsule form is a preparation.
First in Elrayes, Gray J at [32] set out the findings made by the judge at first instance as to the definition of various terms, including 'preparation'. Upon hearing evidence from a senior forensic scientist at Forensic Science (SA) and a pharmacologist, the judge at first instance found:
i.A preparation is where a substance has been altered to make it more amenable for use.
ii.An example of a preparation is converting methylamphetamine base into a salt so it can be dissolved and injected.
There has been no judicial consideration of the meaning of 'a preparation' in the context of the MDA. There has been consideration of the meaning of 'prepare' as that term is used in s 6(1)(b) of that Act. In Valerio v The State of Western Australia[No 2] [2018] WASCA 158; (2018) 274 A Crim R 253, Mazza and Mitchell JJA at [248] - [249] said:
The range of possible meanings of the word 'prepare' includes 'to make ready, or put in due condition, for something' or 'to manufacture, compound or compose'. The Macquarie Online Dictionary defines the verb 'compound' in a number of ways, including, 'to make up or constitute'. Among other things, the Oxford English Online Dictionary defines 'prepare' as 'to produce, form, or make, especially by bringing together ingredients or components; to manufacture; to synthesise, concoct, compound'. It may be seen that the dictionary meaning of the verb 'prepares' overlaps with that of 'manufactures'.
While the concepts of manufacture and preparation overlap, the terms also have distinct areas of application. For example, the combination of other chemicals to create methylamphetamine might be regarded as a 'manufacture' but not a 'preparation' of methylamphetamine. Conversely, taking methylamphetamine which is already in usable form, diluting it with a cutting agent and placing it in packages ready for sale may involve preparation, but not manufacture, of methylamphetamine.'
The meaning given to 'prepare' in Valerio is consistent with the pronouncements of superior courts in other jurisdictions that have considered the word in the context of legislation involving prohibited drugs.
The High Court in Calabria v The Queen (1983) 151 CLR 670 considered s 5(2)(a) of the Narcotics and Psychotropic Drugs Act 1934 (SA) which provides that 'a person who produces, prepares or manufactures a drug to which this Act applies shall be guilty of an indictable offence'.
At [675] the court said:
'Prepare' is a word in common use and means to 'make ready', or 'to bring it into proper state for use by some special or technical process', although it can also mean 'to manufacture, to make up or compound': Shorter Oxford English Dictionary. The process of drying may be called special even if it is not technical, and it conforms to ordinary usage to say that a person who dries, e.g., fish or fruit or coffee to bring it into a state in which it is fit for consumption in a particular way takes part in its preparation. Thus in the ordinary sense of the word, one who dries Indian hemp, in order to make it fit for purpose, 'prepares' it. The context of s. 5(2)(a) provides no reason to read down the meaning of the word; indeed it supports the view that a drug which has been produced, manufactured or cultivated may still be prepared to make it fit for use.'
In each of these cases the drug in question was being made ready for use by some process. With the exception of Elrayes, which adopted the finding made at first instance, each of these cases considered the meaning of 'prepare' or 'preparation' in circumstances where the word was being used as a verb. In this case the terms 'admixture' and 'preparation' are both being used as a noun. There has been no judicial consideration of what constitutes a 'preparation' when that word is used as a noun and it is necessary to look to the dictionary definition. It may also be relevant to consider the use of the term 'preparation' in a medical and/or pharmaceutical context given the nature of the acts, regulations and standard that are part of the legislative scheme of which the MDA is a part.
The Macquarie Online Dictionary defines the noun 'preparation' to variously mean 'a proceeding, measure or provision by which ones prepares for something; something prepared, manufactured or compounded'.
The Oxford English Dictionary Online defines it as 'the action of preparing something' or 'the result of preparing; a thing which is prepared or made ready for any action; a specifically prepared or made up substance, as a medicine, a specimen that has been prepared for medical or scientific examination, display'.
The Online Medical Dictionary defines 'preparation' as 'something made ready, as a medicine or other mixture, or a histological specimen'.
Dorland's Illustrated Medical Dictionary 30^th ed defines 'preparation' as 'the act or process of making ready; a medicine made ready for use; an anatomical or pathological specimen made ready and preserved for study'.
Finally, the Cochran Online Library (a collection of databases in medicine and other healthcare specialities) defines 'pharmaceutical preparations' as 'drugs intended for human or veterinary use, presented in their finished dosage form. Included here are materials used in the preparation and/or formulation of the finished dosage form'.
I take it from these dictionary definitions that a 'preparation' is the result of some action or activity undertaken that has resulted in a substance being made ready for, or put in a form or state in which it is to be used or consumed. In essence the product of an act of preparation is a 'preparation'. This is consistent with the judicial considerations of 'prepare' or 'preparation' to which I have referred.
In my view, then, a capsule containing a predetermined quantity or dose of MDMA is a 'preparation'. The capsule is not, as was submitted by the offender, packaging akin to a bottle or a clipseal bag. A capsule is fundamentally different. Unlike a bottle or a clipseal bag, a capsule is intended to be consumed together with its contents without more. Whilst it may be possible to consume the contents of the capsule without the capsule itself this is not its intended purpose.
This conclusion is not inconsistent with the meaning given to the term 'divided preparation' in the SUSMP. 'Divided preparation' is defined as 'a preparation manufactured and packaged as a discrete premeasured dosage unit prior to sale or supply, and includes tablets, capsules, cachets, single dose powders or single dose sachets of powders or granules': see Rule 1(1) of the SUSMP. 'Divided preparation' must as a matter of common sense be a subclass of a 'preparation' and therefore a 'preparation' must include a capsule which is listed within the definition of 'divided preparation'.
I do not accept the offender's submission that the term 'divided preparation' is only ever used in the SUSMP to refer to packaging. A perusal of the list provided by the offender of the places where the term 'divided preparation' is used in the SUSMP does not support this submission. The references all appear in the schedules to the SUSMP and all are references to dosages which then attract particular rules about how they are packaged or labelled or otherwise dealt with.
For completeness, neither do I accept the offender's contention that the language used in Court of Appeal cases that have involved capsules containing prohibited drugs such as KJL v The State of Western Australia [2021] WASCA 65 [12]; R v Punevski [2001] WASCA 121 [21]; The State of Western Australia v Egeland [2018] WASCA 228 [13]; and Lenton v The State of Western Australia [2017] WASCA 224 [11] is authoritative. The court was not, in any of these cases, considering this issue. Further, and in any event, without reference to the certificates of analyst no assumptions can be made based on the language adopted by the court.
Given that I am satisfied that a capsule containing MDMA is a preparation if follows that I am satisfied that the relevant weight of the drug in this case is 55.42 grams being the gross weight of the capsule and its contents. I therefore declare you to be a drug trafficker in respect of count 1 on indictment 577 of 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Petrusa
28 SEPTEMBER 2021