Sentence - Appeal against - Judicial discretion in sentencing - Totality principle - Six counts of possession with intent to sell or supply, three counts of simple possession, one count of cultivating cannabis with intent to sell or supply - Aggregate sentence of 11 years not excessive

Misuse of Drugs Act 1981 (WA)

Application for leave to appeal against sentence allowed

Caritativo & Fisher v The Queen, unreported, CCA SCt of WA, Library No 970033; 10 February 1997

Roberts v The Queen [1999] WASCA 273

1 PIDGEON J: I have read in draft the reasons to be published by Anderson J. I agree with those reasons and the orders proposed.

2 WALLWORK J: I agree with the reasons for judgment of Anderson J and to the orders proposed by his Honour.

3 ANDERSON J: On 18 January of this year the appellant was presented in the District Court on an indictment containing 11 counts alleging drug offences. Ten of the counts alleged possession with intent to sell or supply and one count alleged cultivation of a quantity of cannabis plants with intent to sell or supply. As to the counts alleging possession with intent, two related to the possession of cannabis plant material, one related to the possession of LSD, two related to the possession of methylamphetamine, two related to the possession of amphetamine, two related to possession of ephedrine and one related to possession of liquid cannabis extract. After a trial lasting five days, the appellant was found guilty of six counts of possession with intent and three counts of simple possession. He was also found guilty of the count alleging cultivation of cannabis plants with intent. There had been a directed acquittal on the count involving liquid cannabis extract. In respect to the 10 convictions, the appellant was sentenced to an effective total prison term of 11 years with eligibility for parole.

4 Concerning the appeal against conviction, the single ground upon which it is contended that any of the convictions should be set aside is that there was a misdirection as to the meaning of "supply". This being so, I take the appeal to relate only to the convictions for the offences involving intent to supply. A misdirection as to what is meant by "supply" could not affect the convictions for the offences of simple possession.

5 The point arises in the following way. The offence of possession of drugs with intent to sell or supply is created by s 6(1) of the Misuse of Drugs Act 1981 (WA) which provides:

(a) with intent to sell or supply it to another, has in his possession;

a prohibited drug commits an indictable offence ... "

6 As to the element of intent to supply, there is a deeming provision in the Act. It is s 11 which provides:

(a) section 6 (1) (a), 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."

7 The quantities of the drugs which were the subject of the six counts in respect to which the appellant had been convicted of possession with intent were such as to enable the Crown to rely on the deeming provision in s 11(a). On the Crown case, it was not necessary for the Crown to prove actual (in the sense of subjective) intent. The Crown needed only to prove that the quantities were not less than the quantities specified in Sch V and in each case there was ample evidence in proof of the relevant quantity.

8 There is no complaint about the directions given to the jury concerning the effect of the deeming provisions of s 11(a). It is contended on behalf of the appellant, however, that there was evidence upon which the jury might have concluded, on the balance of probabilities, that the appellant did not in fact intend to supply the drugs to another; and on that question the jury were not given any direction.

9 Specifically, the appellant's complaint is that the jury ought to have been directed to the effect that if they were satisfied on the balance of probabilities that the appellant was simply holding the drugs in circumstances where he had been given the drugs by the owner of them to hold for that person with a view to returning them to that person in due course, they should find him not guilty of possession with intent to sell or supply. This is the so-called "Manisco" defence. It has its genesis in Manisco (1995) 79 A Crim R 213. In that case, the defendant was charged with possessing methylamphetamine with intent to sell or supply. His counsel told the trial Judge that his explanation would be that he had been holding the drug "on the basis that it was handed to him by one or two persons with a view to returning it to those persons at a later date". The trial Judge indicated that he did not regard that as a defence. He informed counsel that he would direct the jury that, even if they accepted that explanation, there was a contravention of the section, nonetheless. The defendant thereupon pleaded guilty and later appealed on the ground that the guilty plea was entered only because of the trial Judge's ruling which, it was contended, was wrong. The appeal was allowed by this Court, differently constituted. The court held that the word "supply" was not appropriate to include the mere return of physical control of drugs to the owner of them.

10 Before dealing with the merits of this ground of appeal, I should say that it is not in the least surprising that the trial Judge did not give a "Manisco" direction to the jury in this case. He was not requested to do so, nor was the defence conducted on the basis that the appellant was merely holding the drugs with a view to returning them to the person who had delivered them to him. The defence case was that the appellant had acted under duress.

11 As to whether a Manisco direction ought, nevertheless, to have been given, there was, in my opinion, no evidence on which a jury could be satisfied on the balance of probabilities that the appellant was merely holding the drugs under an arrangement whereby he was to return them to their owner. There was no factual basis upon which a Manisco direction was called for.

12 The evidence on which counsel for the appellant relied was the appellant's own evidence given in explanation for the presence of the drugs at his premises. Apparently, the appellant carries on business as a motor mechanic, specialising in the repair of motor cycles. He had a workshop at Maddington and he lived at Gnangara. Drugs were found at both premises.

13 His explanation was to the effect that a gang of seven or so "very unpleasant characters" who looked like "bikies" and who the appellant did not know turned up at his Maddington workshop one day and demanded to be given a motor cycle which the appellant had repaired or was in the process of repairing for a customer. When the appellant refused to do so or to reveal the whereabouts of the bicycle, the gang threatened him with violence and threatened to destroy his property and laid down certain ultimatums before leaving. Several weeks later, he received a phone call "to attend a lady with two children" who claimed to have broken down on Great Eastern Highway "just past the airport turnoff". He did not know this lady, but eventually agreed to go to her assistance. When he arrived, there were, he said, eight men waiting for him. They demanded that he give them the motor cycle (t/s 154):

" ... and they started getting abusive and that then I don't remember anything else. The only thing I remember is that I got up with a sore jaw. I don't remember even be hitting. I just remember that I had a damaged jaw and then - and I still had the phone on my hand, sort of thing, when I got up and I said 'What am I doing with the phone in my hand?' you know, and I walked to my car. There was nobody around. I didn't get kicked. It was just a hit on the jaw and that's it. I just don't remember. I don't even remember actually see[ing] anybody hitting me."

14 He gave evidence that after this incident he received threatening and violently abusive phone calls demanding that he take possession of drugs. These he said he found "dumped" behind his Maddington premises in (t/s 157):

" ... a big blue bag which was obviously dropped over and it was - the top of the bag was open, you know, and [there] was cannabis on the ground. White bags busted open, two of them or something like that. I can't remember exactly."

15 His evidence was to the effect that, acting in accordance with the directions he had been given by the unknown telephone caller, he took possession of the bag. He then placed some of the drugs in his business premises and took the rest to his home at Gnangara. He gave evidence that he was fearful of harm being done to himself and to his family and to his property if he did not do as he was told. I take the following from the transcript, as it appears to me to be the evidence now mainly relied upon in support of the appeal:

"What were you told to do with the bag?---I was told to keep it in my - till they let me know what to do with it, where to drop it, or when they're going to pick it up, and 'Just do as you're told, c -, or else you'll find out' - he sort of talked to me and I said, 'Well, hang on a minute. What's going on?' He said, 'Just do as you're told. We know your daughter Tanya and we know your Peter, son. We know you live at lot 7 Sydney Road. We will f - youse over. So, c - , do as you're told and shut up,' and that was the last.

What did you then do with the bags, or what did you do with the content of the bag?---Well, I got a box to start off with, then I got some Coventry's bags, because I use them on the spares. I have the (indistinct) spares also. I took the Coventry bags and (indistinct) individually. I didn't know what else was in there at the time but I dragged it in the workshop, put it between the two benches on the lathe and all that and I looked in and there was a tin, there was a plastic container, there was one set of scales, white scales. You can buy them at K Mart, whatever they are. I've seen them there.

Why didn't you ring your local police station?---Well, with a threat like that, with my - it wasn't me that I was worrying about too much - I can cope with it, I believe - but once they mention my house and my kids, no way in the world. I mean, I did seek advice as much as I could - 'What can I do?' - and they said, 'Without evidence, nothing.' The only evidence I had then, it was that I was in possession of the drugs, and I didn't know who they bloody belonged to.

Why did you take some of the drugs from Maddington to Sydney Road?---On a later day - that didn't happen on the day but on a later day I got another call to take those drugs and everything down to my place.

Why were you to take them to your place?---Because they would be picked up from north of the river." (t/s 159)

(I interpolate here to say that Maddington is south of the river and Gnangara is north of the river in the parlance of residents of the Perth metropolitan area.)

"Why had you only taken part of the drugs to Sydney Road?---Well, I just wanted to transport them a small amount at a time, you know, for - there was strong smell. They were pretty strong, you know, and I was feeling - - -

The small amount of amphetamine found in the office at your work on the desk area - it was a small amount, half a gram of amphetamines?---That would be mine.

Did you ever at any time intend to sell any drugs to any person?---Never. Never." (t/s 160)

16 Putting to one side the obvious difficulties in giving any credence to the appellant's story it did not amount to evidence that the appellant was merely holding the drugs for re-delivery to the true owner. There is no evidence identifying the person who is supposed to have dumped the drugs behind the Maddington premises as being the owner of the drugs. There is no evidence identifying the maker of the threatening telephone calls as being the person who had dumped the drugs at the appellant's premises. There is no evidence identifying the people to whom the drugs were to be delivered or by whom they were to be "picked up" as being the same person or people who had dumped the drugs at the appellant's premises. The appellant did not give evidence that he believed that he was merely holding the drugs on receipt from the owner with a view to returning them to that same person.

17 In my opinion, there was no occasion for the trial Judge to give a Manisco direction and his failure to do so has not produced a miscarriage of justice.

18 There is a subsidiary point. Following the decision in Manisco, the Misuse of Drugs Act was amended in response to it. The relevant amendment was by way of an insertion of a definition of the phrase "to supply". The definition of "to supply" had the effect of doing away with the Manisco defence. The definition, introduced into s 3, is as follows:

"'To supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied."

19 This amendment was introduced in March 1998, after the offences charged in this indictment. When the learned trial Judge directed the jury as to the meaning of "supply" in s 6(1)(a), he directed them in terms of the definition. He was in error in so doing because the definition did not apply. The amendment by which it was introduced had no retroactive operation. It was an error which, incidentally, he was not asked to correct. However, insofar as the error constituted a misdirection as to the meaning of "supply", it produced no miscarriage of justice. Although the effect of the direction was to preclude consideration by the jury of the Manisco defence, that defence was, anyway, unavailable in point of fact.

Application for leave to appeal against sentence

21 The learned trial Judge imposed the following sentences.

Count 1: Possession of cannabis with intent to sell or supply (4,739.2 grams): 12 months' imprisonment.

Count 2: Possession of LSD with intent to sell or supply (3.06 grams): 4 years cumulative upon the sentence with respect to count 1.

Count 3: Possession of methylamphetamine with intent to sell or supply (106.75 grams): 7 years.

Count 4: Possession of ephedrine (6.69 grams): 3 months' imprisonment.

Count 5: Possession of amphetamine (0.53 grams): 3 months' imprisonment.

Count 7: Possession of cannabis (3,682.8 grams) with intent to sell or supply: 12 months' imprisonment.

Count 8: Possession of ephedrine (23.97 grams) with intent to sell or supply: 2 years' imprisonment.

Count 9: Possession of methylamphetamine (181 grams) with intent to sell or supply: 7 years' imprisonment.

Count 10: Possession of amphetamine (0.51 grams): 3 months' imprisonment.

Count 11: Possession of cannabis plants (52 plants) with intent to sell or supply: 12 months' imprisonment.

22 His Honour expressly applied the totality principle and expressly took into account the good antecedents of the appellant and structured the above sentences so that the appellant received an aggregate term of 11 years' imprisonment. The 7-year terms on counts 3 and 9 were made concurrent with each other. The 4-year term on count 2 was made cumulative upon them. All other terms were made concurrent with each other and with the 7-year terms. A parole eligibility order was made.

23 The principles upon which an appellate court must approach an appeal from a decision in the exercise of sentencing discretion are well established. It is not sufficient that the judges comprising the court of appeal may have imposed different sentences. The court of appeal must be persuaded that the sentencing court failed to properly exercise its sentencing discretion.

24 The maximum sentence for possession of prohibited drugs with intent to sell or supply under s 6(1) and s 7(1) of the Misuse of Drugs Act is a fine of $100,000, imprisonment for a term of 25 years, or both. The maximum for simple possession of prohibited drugs under s 6(2) is a fine of $2,000 or imprisonment for 2 years, or both.

25 The court has noted on many previous occasions that the distribution of drugs such as amphetamines is causing enormous community concern and is doing a great deal of harm, especially to young people. It has long been recognised that illegal drug abuse has become a serious problem in Australia and the courts are obliged to fashion sentences which really do have a deterrent effect. Methylamphetamine is now regarded as being at the high end of the scale of seriousness in the hierarchy of prohibited drugs. If it is not quite in the same category as heroin and cocaine, it is very nearly in that category: Bellissimo (1996) 84 A Crim R 465; Darwell (1997) 94 A Crim R 35, especially per Malcolm CJ at 40. The bad feature of this case, apart from the quantities, is the range of other drugs which were also involved. Possession of a range of drugs (in this case substantial quantities of cannabis, LSD, amphetamine, methylamphetamine, ephedrine and a substantial number of cannabis plants) is a powerful indicator of middle to large scale drug dealing.

26 Whilst the personal circumstances and antecedents of a defendant must always be taken into account by a sentencing court, they carry little weight where there is evidence of drug dealing on a significant scale and where the main sentencing consideration is general deterrence.

27 Counsel for the appellant pointed to a number of cases in which sentences of about the same length as the appellant received for the charges relating to the methylamphetamine were imposed but which involved a much greater quantity of that drug. In the case of Atholwood v The Queen [2000] WASCA 76, the sentence was 6 years' imprisonment for 449.28 grams of amphetamine. In R v Votano [2000] WASCA 144, the sentence was 7 years' imprisonment for 401 grams of amphetamine. In Miller v R [1999] WASCA 66, the sentence was 7 years' imprisonment for 454 grams of methylamphetamine. In Reppucci (1994) 74 A Crim R 353, there was a starting-point of 10 years for one kilo of amphetamine. In this case, the quantity involved was 287.75 grams and counsel submitted that an aggregate sentence of 7 years for that quantity was manifestly excessive. I cannot accept this submission. The quantity involved in this case was a substantial quantity. What must be shown is that the sentence was beyond the range of a sound discretionary judgment. I am not persuaded that it was. It must be remembered that the appellant was dealing on a significant scale in a range of drugs and the two counts of possession of methylamphetamine with intent to sell or supply had to be placed in that context for sentencing purposes. It is not a case in which the appellant was entitled to a discount for pleading guilty. Whilst an aggregate term of 7 years' imprisonment is undoubtedly at the top end of the scale of usual sentences for this quantity of this drug, having regard for all of the circumstances, including the maximum which parliament has prescribed, I am not persuaded that the sentence is manifestly excessive.

28 As to the count involving LSD, which is count 2, the sentence imposed was 4 years' imprisonment. This Court has recognised in the past that LSD is a highly dangerous drug. In Furness v The Queen, unreported; CCA SCt of WA; Library No 950236; 17 May 1995, this Court, differently constituted, said at 9:

"LSD is an insidious substance. It has been classed with cocaine and heroin in terms of its dangerousness: see Robertson v R (1989) 44 A Crim R 224 at 230. It has the potential to have devastating effects on the community. Parliament has recognised this by setting 0.002 grams (a minute quantity) as the quantity which exposes an offender to the severe penalties described. General deterrence must be a major factor in a sentence for a crime of this nature."

29 In this case, the appellant was found in possession of 525 paper tablets. It may be accepted that they were of low purity, but the insidious nature of the drug lies in its addictive quality. This case had to be judged on the basis that the appellant had got into a position to supply 525 items which, notwithstanding their low purity, had the potential to do substantial harm. I do not accept that a sentence of 4 years' imprisonment is outside the range of sentences generally imposed for offences of a like nature. There is a number of cases involving possession of similar quantities of LSD with intent to sell or supply in which sentences between 4 and 6 years have been imposed. Some of these cases have been referred to in the written submissions provided to this Court. Furness is one such case. In that case, the quantity was 0.133 grams. The appropriate starting-point was held to be 6½ years. In Geary & Kyros v The Queen, unreported; CCA SCt of WA; Library No 930060; 3 February 1993, the quantity was 0.7 grams. A sentence of 6 years and 5 months' imprisonment was held not to be excessive. In this case, the quantity was 3.06 grams.

30 It was submitted on behalf of the appellant that there was a failure properly to apply the totality principle and that a sentence of 11 years' imprisonment was disproportionately long, having regard for the criminality of the appellant's conduct viewed as a whole. Once again, while I consider that 11 years certainly is at the top of the range of sentences for dealing in multiple drugs of this quantity, it cannot be said to be manifestly excessive. What the court must bear constantly in mind is the maximum sentences which parliament has imposed for drug dealing. The courts are bound to sentence drug dealers in the light of parliament's intention, manifested by the very high maximum penalties, that they be dealt with very severely. In this case, as I have said, there was a range of drugs and the quantities were substantial. The sentences with respect to each individual count on which a verdict of guilty was returned add up to 23 years and 9 months' imprisonment. Each of those individual sentences was of an appropriate length. The learned trial Judge structured the sentences so as to produce an effective sentence of only 11 years and he did so expressly in deference to the totality principle. It has not been shown that there was any manifest error in the process by which the effective sentence was arrived at. I am not persuaded that the sentence itself is so far out of line with sentences imposed in like cases as to reveal error.

31 I would grant the application for leave to appeal, but dismiss the appeal against sentence.