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[2005] WASCA 177
Court of Appeal (WA)
2005-09-19
Smith JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : PEPPER -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 177
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law and procedure - Appeal - Conviction - Possession of methylamphetamine with intent to sell or supply - Quantity less than scheduled amount so that offence could be dealt with summarily - Ex officio indictment - Whether superior court has jurisdiction where offence not referred under s 5 of the Criminal Code (WA) or s 32 of the Sentencing Act 1995 (WA) - Whether s 5 of the Criminal Code operates to prevent presentation of ex officio indictment for offence that can be dealt with summarily
Appeal - Sentence - No commercial aspect to offending - "Sell or supply" as a composite offence - Whether sufficient discount for guilty plea - "One transaction" rule
Misuse of Drugs Act 1981 (WA), s 6(1), s 9
Appeal against conviction dismissed (CACR 106 of 2005)
Application for leave to appeal against sentence refused (CCA 209 of 2004)
Attorney-General (SA) v Tichy (1982) 30 SASR 84
Bounds v The Queen [2005] WASCA 1
Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268
Coyne v The Queen, unreported; CCA SCt of WA; Library No 2325; 1 May 1978
Esteban v Wolpers, unreported; SCt of WA (Nicholson J); Library No 7376; 16 November 1988
Herlihy v Crook, unreported; SCt of WA; Library No 6354; 10 July 1986
In re Chance [1936] Ch 266
In re Feldt (1910) 13 WALR 28
Jones v Moffatt, unreported; SCt of WA (McKechnie J); Library No 990196; 31 March 1999
Langridge v The Queen (1996) 17 WAR 346
Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213
Paciente v The Queen, unreported; CCA SCt of WA; Library No 920574; 10 November 1992
R v Aloia [1983] WAR 133
R v Brown (1982) 5 A Crim R 404
R v Chalak [1983] 1 NSWLR 282
R v Collins (1993) 67 A Crim R 104
R v Darwell (1997) 94 A Crim R 35
R v Hoang [2002] SASC 262; (2002) 83 SASR 254
R v Marker [2002] WASCA 282; (2002) 135 A Crim R 55
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Ruane (1979) 1 A Crim R 284
R v Selita [2004] SASC 292; (2004) 149 A Crim R 243
R v Shaw (1989) 39 A Crim R 343
Re Applications of Shephard [1983] 1 NSWLR 96
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Abela v The Queen [2002] WASCA 279; (2002) 134 A Crim R 392
Allen v The Queen, unreported; CCA SCt of WA; Library No 950215; 27 April 1995
Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75
Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330
Jarvis v The Queen (1993) 20 WAR 201
Johnson v The Queen [2002] WASCA 102; (2002) 26 WAR 336
Kirby v The Queen [2003] WASCA 164
Koushappis v The Queen, unreported; CCA SCt of WA; Library No 950729; 6 December 1995
Leonard v The Queen, unreported; CCA SCt of WA; Library No 990152; 29 March 1999
Lim v The Queen [1999] WASCA 296
Little v The Queen [2001] WASCA 87
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Atholwood [2000] WASCA 76; (2000) 110 A Crim R 417
R v Bellissimo (1996) 84 A Crim R 465
R v Marinovich (1988) 1 WAR 343
R v Paparone [2000] WASCA 127; (2000) 112 A Crim R 190
R v White [2002] WASCA 112
Radebe v The Queen [2001] WASCA 254; (2001) 162 FLR 313
Stapleton v The Queen [2004] WASCA 130
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Vodanovic v The Queen, unreported; CCA SCt of WA; Library No 960056; 9 February 1996
Worth v The Queen [2001] WASCA 303
1 ROBERTS-SMITH JA: This is an application which commenced life as an application for leave to appeal against sentence but was transmogrified (at least in part) at the hearing into an appeal against conviction.
2 On 25 November 2004 the applicant (to whom, for convenience, I shall refer to as "the appellant") faced an indictment dated that day ("the 25 November indictment"), containing four counts. They were that on 15 January 2004 he:
1. stole a Lexus motor vehicle and drove it in a manner constituting the offence of reckless driving (contrary to s 371A and s 378(2)(a) of the Criminal Code ("Code"));
2. assaulted Scott Mills with intent to prevent his arrest (s 317A(c) of the Code);
3. assaulted Dean Symonds with intent to prevent his arrest (s 317A(c) of the Code); and
4. possessed methylamphetamine with intent to sell or supply it (s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) ("MDA")).
3 He pleaded guilty to, and was convicted of, count 4. He proceeded to trial on the remaining three counts on the indictment. On 26 November 2004 he was convicted of counts 1 and 2 but acquitted on count 3.
4 On 10 December 2004 his Honour O'Sullivan DCJ sentenced the appellant to 2 years' imprisonment on count 1; 16 months' imprisonment on count 2, to be served concurrently; and 2 years' imprisonment on count 4, to be served cumulatively upon count 1. His aggregate sentence was therefore 4 years' imprisonment. His Honour ordered that the appellant be eligible for parole.
5 On 23 December 2004, the appellant filed a notice of application for leave to appeal against sentence dated 17 December. There was one ground of appeal. It was that:
"The sentence was manifestly excessive having regard to the fact that count 3 was ordered to be served cumulatively:
(i) This count was the subject of a plea of guilty
(ii) This count, as with the other counts, all arose at the same time and out of the same set of circumstances"
6 On 3 March 2005 leave was granted to amend the notice by changing the reference to count 3 to count 4. On 4 March, the appellant filed a notice of further and better particulars of the ground of appeal. However, the notice was still deficient in that it failed to specify what orders were being sought by him. That omission subsequently assumed some significance because on 1 June 2005 (seven days before the date for hearing of the application), the appellant filed an application for leave to amend the grounds of appeal in terms of the additional proposed ground of appeal also filed that day which, in fact, contained three grounds. On 7 June 2005 (the day before the hearing of the application) the appellant filed yet a further proposed amended ground of appeal which was to be ground 4. That was in the following terms:
"There was no power to file an ex officio indictment in relation to count 4 as the District Court of Western Australia is not seized of jurisdiction for quantities of methylamphetamine where the amount of the drug is less than 6 g (s 9 and Schedule III of the Misuse of Drugs Act 1981) and where the matter was not referred for trial or sentence under the provisions of s 5 of the Criminal Code 1913".
7 Subject to one caveat, counsel for the respondent on the hearing of the application for leave to appeal against sentence had no objection to leave being granted to amend the grounds of appeal. The State's caveat was that ground 4, if successful, would necessarily result in a quashing of the conviction, but there was no appeal against conviction. That potential consequence was clearly correct. Leave was accordingly granted, subject to counsel for the appellant undertaking to file an appeal notice against conviction. That was subsequently done on 23 June 2005. Ground 4 may therefore now be taken as being the single ground of the appeal against conviction in respect of count 4.
8 The grounds of appeal against sentence as finally framed are:
"1. the Learned Sentencing Judge erred in law and in fact in failing to assess the seriousness of count 4 (possess methylamphetamine with intent to supply) in the context of the objective facts of the case and, in particular, that :
(i) the Applicant pleaded guilty on the basis that he was a user of amphetamine and possessed the drug both for his own use and to supply to friends
(ii) the State accepted that he was not involved in any commercial dealing with the drug
(iii) the quantity of the drug (3.88g in total).
2. the Learned Sentencing Judge erred in law and in fact in failing to give any or sufficient discount for the Applicant's plea of guilty:
Particulars
(i) the Applicant pleaded guilty at the first opportunity, the ex officio indictment having first been presented on the first day of trial when the plea was entered.
(ii) the Learned Sentencing Judge failed to give any or adequate reasons as to what (if any) discount was given and the basis upon which a discount similar to that given on a 'fast track' plea was not given in this case for the plea of guilty.
3. The Learned Sentencing Judge erred in law and in fact in making the sentence on count 4 cumulative upon the other (concurrent) sentences:
Particulars
(i) count 4 was part of 'one transaction' of criminal conduct
(ii) The State was presented the ex officio indictment and joined it with this indictment on the basis that count 4 was part of the one transaction of criminal conduct."
9 The appeal against conviction should logically be dealt with first.
10 It is necessary to explain the process by which count 4 came before the District Court. That information is provided largely in an affidavit of Andrée-Marie Elizabeth Horrigan, the appellant's solicitor, sworn 1 June 2005 in support of the application to amend.
11 The appellant was originally presented on an indictment dated 9 August 2004 containing three counts.
12 On the morning of the trial, the State presented the 25 November indictment. The four counts were joined on the basis they all occurred around the same time and were related. A nolle prosequi in respect of the 9 August indictment was not formally presented until the appellant's sentencing on 10 December 2004.
13 The facts as they were recounted in his Honour's sentencing remarks may be summarised as follows.
14 On 18 October 2003 a Lexus four wheel drive motor vehicle was stolen from Subiaco. The appellant was seen driving it in late November that year and was photographed. On 15 January 2004 he was again seen, this time by police officers who followed him. He became aware that they were behind him and accelerated away. A chase ensued. In the course of that chase, the appellant drove in a very dangerous and reckless manner, including driving across a busy cross-road without stopping, and eventually abandoning the vehicle and letting it roll uncontrolled down a street.
15 Police officers chased the appellant on foot and eventually caught him. There was a struggle. The appellant is a man of some strength and stature and it took the officers a lot of force to subdue him. He was eventually overpowered but not before he punched one of the arresting police officers. They then searched the car which he had abandoned and methylamphetamine was found in it. The main parcel was found in a cigarette packet and contained methylamphetamine of 56 per cent purity. A further quantity (0.17 of a gram) of methylamphetamine, 62 per cent pure, was found in a mobile phone pouch around the appellant's neck. There were other small parcels. In addition to the drugs the officers found a set of electronic scales with traces of the drug on them and other items described as paraphernalia related to drug dealing.
16 We were informed by counsel that the appellant was originally charged on a number of complaints in the Court of Petty Sessions, each alleging possession of an amount of methylamphetamine. Those charges had apparently been framed on the basis that they related to the different quantities of the drug packaged discretely and of varying amounts of purity.
17 According to Ms Horrigan's affidavit, she was telephoned by the trial prosecutor, Mr Jeremy Johnston, some two weeks prior to the date listed for trial. He advised her that the various charges of possession of methylamphetamine, then on complaints in the Perth Court of Petty Sessions, would be joined as one charge in the District Court by means of an ex officio indictment. He advised her that the reason for the joinder was that the drug matters arose at the same time as the matters the subject of the then existing indictment. Ms Horrigan deposes that she told him that she would not object to such a proposal because she agreed with the suggestion that all matters arose out of the same set of circumstances and should be tried together; that the appellant had always indicated that he intended to plead guilty to the drug charges by way of a s 32 notice after trial (if convicted), as each charge fell below the presumptive amount; and that if the charges were joined into one charge he would plead guilty to that at trial.
18 The trial transcript reveals that consequently, when the matter was called on before the trial Judge on 25 November 2004, the State prosecutor advised his Honour of the course the State proposed to take. Ms Horrigan told his Honour that it was always anticipated in relation to count 4 that it would come out of the Court of Petty Sessions and be joined with the other counts on the indictment. She explained that:
"They quite properly arise out of the same set of circumstances and reference would otherwise have had to be made by Mr Pepper to that substance in the course of his evidence if he gives evidence in any event, so I have already flagged with my learned friend I had no objection to that extra charge being added. Following taking instructions from Mr Pepper as recently as yesterday, he has confirmed that he wishes to enter a plea of guilty to that charge."
19 In the presence of the jury panel, the appellant pleaded guilty to count 4 and not guilty to the remaining counts.
20 Count 4 was in effect a consolidation of the several charges on the existing complaints in the Court of Petty Sessions.
21 Section 6(1)(a) of the MDA relevantly states that:
(a) with intent to sell or supply it to another, has in his possession;
...
22 Section 9(1)(a) of the Act relevantly provides that:
"If a person is charged before a court of summary jurisdiction with -
(a) an offence under section 6(1) in respect of a quantity of a prohibited drug referred to in Schedule III that is less than the quantity specified in that Schedule in relation to that prohibited drug;
...
then ... the summary conviction penalty for the offence is that set out in section 34(2)(b)."
"If a person charged before a court of summary jurisdiction with an offence that may be dealt with summarily under subsection (1) is, under section 5 of The Criminal Code, committed for trial or sentence in respect of the offence, the court to which the accused is committed may deal with the charge despite -
(a) the quantity of the prohibited drug to which the charge relates being less than the quantity specified in Schedule III in relation to that prohibited drug ..."
24 The relevant amount of methylamphetamine as set out in Sch III of the Act is 6 grams.
25 Pursuant to s 5 of the Criminal Code, a matter may be tried on indictment only if any of the matters set out in subs (3) apply and after application by the prosecution or defence under subs (2)(a). No such application was made in this case and no such order was made in respect of the Court of Petty Sessions complaints; nor were the complaints referred to the District Court for sentencing pursuant to the provisions of s 5(8) and (9) of the Criminal Code, nor under s 32 of the Sentencing Act 1995 (WA).
26 As at 25 November 2004, s 579 of the Criminal Code provided the power for an ex officio indictment to be presented. That section has now been repealed, but at the time the second paragraph of it read:
"An officer appointed ... may present an indictment in that court against any person for any indictable offence within the jurisdiction of the court, whether the accused person has been committed for trial or not ..."
27 The appellant emphasises the words "within the jurisdiction of the court". The submission is that as the quantity the subject of count 4 was under 6 grams, the District Court did not have jurisdiction to try or sentence the appellant for that offence, unless and until the Court was seized of jurisdiction pursuant to s 5 of the Criminal Code or s 32 of the Sentencing Act. The submission is that therefore there was no power to present the ex officio indictment in respect of count 4, and that being so, the conviction is a nullity because the Court had no jurisdiction to deal with that count.
28 It is perhaps apposite to observe in passing that we were further informed by counsel that following the appellant's sentencing on the ex officio indictment, the charges on complaint in the Court of Petty Sessions were formally dismissed because they had been dealt with in the District Court.
29 Offences are of two kinds - indictable offences and simple offences. An offence which is not otherwise designated is a simple offence (Interpretation Act 1984 (WA), s 67).
30 The procedure for dealing with indictable offences was then set out in the Justices Act 1902 (WA) and the Criminal Code (WA) and that for dealing with simple offences, and matters that are to be dealt with summarily, was set out in the Justices Act.
31 Paciente v The Queen, unreported; CCA SCt of WA; Library No 920574; 10 November 1992, was a case in which the appellant had been charged on indictment with two counts. Count 1 was possessing amphetamine with intent to sell or supply; count 2 was possession of amphetamine. Before any plea was taken, prosecuting counsel told the Judge that count 2 alleged only a simple offence and so, was one not properly before the court. On the prosecutor's application and over objection by the defence, the Judge allowed an amendment of count 2 by adding the words "with intent to sell or supply amphetamine to another". The trial proceeded and the appellant was convicted. Section 6(1) of the MDA created a number of indictable offences, including possession with intent to sell or supply. Section 6(2) created the simple offence of possessing a prohibited drug. At that time, s 9 stipulated that a person charged with having committed a simple offence "shall be tried summarily" by a Court of Petty Sessions.
32 On appeal, Franklyn J (with whom Nicholson and Ipp JJ agreed on this point) held that as an "indictment" is a properly authorised document charging an indictable offence (s 578 of the Criminal Code) and as count 2 was not an indictable offence, the document to that extent was not a valid indictment. As the power to amend assumes a valid indictment, the amendment was not within power. The indictment in respect of count 2 did not disclose an offence cognisable by the court.
33 Here the contention is that the District Court had no jurisdiction to try the offence in count 4, nor to convict the appellant of it.
34 By s 8 and s 42 of the District Court of Western Australia Act 1969 (WA), the District Court has all the jurisdiction and powers the Supreme Court has in respect of an indictable offence, except that the District Court has no jurisdiction in respect of offences for which the maximum term of imprisonment is imprisonment for life or strict security life imprisonment.
35 In December 2004, Courts of Petty Sessions had jurisdiction (by s 20 of the Justices Act) to try any summary offence or offences not declared to be treason, felony, a crime or a misdemeanour and where no other provision was made for trial.
36 An explanation of the relevant statutory provisions as they were before the 2004 amendment is usefully set out in the judgments of Steytler J (as he then was) and McKechnie J in Bounds v The Queen [2005] WASCA 1. There, the Western Australian Court of Criminal Appeal quashed a conviction on the second count on an indictment because it charged a simple offence not triable on indictment. The relevant legislative framework is usefully explained by Steytler J at [30] - [45] and by McKechnie J at [91] - [123]. Steytler J explained the situation as follows:
"31 A 'simple offence' is one which is punishable on summary conviction and, somewhat circuitously, a "summary conviction" is one for a simple offence (s 4 of the Justices Act). The procedure, in the case of simple offences, is provided for by Pt VI of the Justices Act.
32 An 'indictable offence' is one 'which may be prosecuted before the Supreme Court, or other court having jurisdiction in that behalf, by information in the name of the Attorney General or other authorised officer' (s 4 of the Justices Act). Until 21 May 2004 that expression was defined in s 1 of the Criminal Code to mean 'an offence a complaint of which is, unless otherwise expressly stated by the Code, triable only by a jury'. However, this last definition was repealed by the Criminal Code Amendment Act 2004.
33 By virtue of s 3(2) of the Code (introduced by the 2004 amendment), an indictable offence is triable only on indictment unless the Code or another written law expressly provides otherwise (cf the former provisions of s 4 of the Criminal Code Act 1913). An indictment is "a written charge preferred against an accused person in order to his [sic] trial before some court other than justices exercising summary jurisdiction" (s 1 of the Code).
34 There is, in various parts of the Code, provision for particular indictable offences to be punished summarily (see, for example, s 426 and s 427). If a person is convicted by a Court of Petty Sessions of an indictable offence, the conviction is to be regarded as having been one of a simple offence only (s 3 of the Code). That situation aside, the general scheme of the Code distinguishes between simple and indictable offences: cf Gorman v Indich [1990] WAR 131 at 132, per Kennedy J, and 137, per Franklyn J.
35 By s 571 of the Code, the 'jurisdiction of courts of justice with respect to the trial of offenders is set forth in the laws relating to the constitution and jurisdiction of those courts respectively'. In the case of the Supreme Court, the relevant provision is s 16 of the Supreme Court Act 1935. In the case of the District Court (in which the appellant was tried) the relevant provision is s 42(1) of the District Court of Western Australia Act 1969. That section provides that, except as provided in s 42(2) (which excludes from the jurisdiction of the District Court offences carrying a maximum term of life imprisonment or strict security life imprisonment), the Court has all the jurisdiction and powers that the Supreme Court has 'in respect of any indictable offence' (my italics). So far as Courts of Petty Sessions are concerned, provision is made by s 20(1) of the Justices Act for the summary determination of offences made punishable on summary conviction and also of any offence, act or omission not declared to be treason, felony, a crime or a misdemeanour and in respect of which no other provision is made for the trial of the offender. By s 4 of the Criminal Code Act, as it stood in 2003, no person is liable to be tried or punished in Western Australia for an indictable offence except under the express provisions of the Code or some other applicable statute. That section has since been amended by the 2004 amending legislation so as to delete the word 'indictable'.
36 Subject to what I have said below, concerning s 602A of the Code, it seems to me to be plain enough from the legislative scheme that simple offences are intended to be tried summarily, in Courts of Petty Sessions, save for those specific instances in which provision has been made for superior courts to deal with simple offences. So, for example, by virtue of s 32(1) of the Sentencing Act 1995, an offender who is to be sentenced by a superior court for an offence may request that court to deal also with any pending charges against that offender and, by virtue of s 32(4), for the purposes of s 32 'a superior court is to be taken to have jurisdiction to deal with simple offences'. Another example is provided for by s 594 of the Code, which provides that:
'Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable or simple offence under this Code, or any other indictable offence, which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment.'
37 Section 602A of the Code provides that a person may be convicted of and punished for an offence on indictment notwithstanding that the person might have been convicted of and punished for that offence 'summarily' (defined by s 1 to mean 'before a court of petty sessions'). The section was introduced in 1987, by the Criminal Code Amendment Act (No 2) 1987, which introduced, at the same time, provisions creating specified simple offences (by the substitution of a new s 313, dealing with common assaults, which had previously been categorised as misdemeanours, and by the introduction of s 378A, dealing with the theft of property to a value of $400 or less) and provisions enabling a number of indictable offences to be dealt with summarily (eg, s 426, s 426A and s 465), although provisions of that kind had previously existed in the Code: see the repealed s 407A, s 426 and s 465. The amending Act also dealt with s 594 of the Code, quoted above. That section had previously read as it does now, save that the words 'any offence' appeared in the section instead of the words 'any indictable or simple offence under this Code, or any other indictable offence'.
38 It seems to me, as it does to McKechnie J, that s 602A was enacted so as to put beyond doubt the proposition that, notwithstanding that the indictable offences referred to in the 1987 Act might be dealt with summarily, a person might nevertheless be convicted and punished for those offences on indictment. The words 'an offence on indictment', read in their context in the amending legislation, and given the legislative history and the existence of provisions such as s 594 of the Code and s 32(4) of the Sentencing Act, seem to me to have been intended to comprehend only indictable offences and not also simple offences. That this was the legislature's intention is, I think, supported by the fact (mentioned by McKechnie J) that s 602A appears within ch LXIII, entitled 'Effect of Indictment' and not in the chapter which deals with jurisdiction (ch LXI) or that which deals with 'Trial: Adjournment: Pleas: Practice' (ch LXIV)."
37 It was not disputed in Bounds that count 2 on the indictment charged a simple offence. It followed that the District Court had no jurisdiction to deal with it in absence of some provision expressly extending the Court's jurisdiction for that purpose. The respondent there argued that s 622 of the Code was such a provision. That section provided that if a person pleads any plea other than one of guilty, or a plea to the jurisdiction of the court, they are thereby deemed to have demanded the issues raised by such plea to be tried by a jury and "... those issues are triable accordingly".
38 Steytler J (Murray J agreeing) doubted (at [43]) that s 622 had any application in that case, but in any event the section was procedural only. McKechnie J expressed similar reasons (at [120] - [123]) and reached a similar conclusion, holding (at [120]) that the reference to "plea" in s 622 could only mean a plea to a valid indictment (which a document charging a simple offence was not: Paciente (supra) and nor was s 622 a provision which could, of its own force, invest a superior court with basal jurisdiction).
39 This case is wholly distinguishable from Paciente. Count 4 charged an offence of possessing a prohibited drug with intent to sell or supply. The marginal note in the indictment refers to s 6(1)(a) of the MDA. As mentioned above, the offence created by s 6(1)(a) is an indictable offence.
40 The crux of the appellant's submission is that there was no power to present an ex officio indictment here because unless referred by the Court of Petty Sessions under s 5 of the Code or s 32 of the Sentencing Act, the District Court had no jurisdiction to try or sentence the applicant for the offence.
41 At the time of the appellant's conviction and sentence the power to present an ex officio indictment was contained in s 579 of the Code. The first paragraph of that section empowered the Attorney General to present any indictment in any court of criminal jurisdiction against any person for any indictable offence whether the accused had been committed for trial or not. The second paragraph gave a similar power to an officer appointed by the Governor to present indictments in any court of criminal jurisdiction in the State.
42 The 25 November indictment purports to be signed by the Director of Public Prosecutions personally. No point is taken about his authority to do so.
43 Significant changes were made to the jurisdictional and procedural provisions of the Criminal Code by the Criminal Code Amendment Act 2004 (WA) which came into operation on 21 May 2004, and the provisions of which were therefore in effect at the time of trial. (They have since been repealed and replaced by provisions in the Criminal Procedure Act 2005 (WA), which came into operation on 2 May 2005). The Criminal Code Amendment Act abolished the division of offences into crimes, misdemeanours and simple offences in s 3 of the Code. By the new s 3, an indictable offence is triable only on indictment, unless the Code or another written law expressly provides otherwise (s 3(2)).
44 Section 5 of the Code was amended to read as follows:
(a) a provision of this Code, or another written law, provides a summary conviction penalty for an indictable offence; and
(b) a person (the 'defendant') is charged before a court of petty sessions (the 'court') with committing the indictable offence in circumstances where the summary conviction penalty applies to the offence (the 'charge').
(2) Despite section 3(2), the court is to try the charge summarily unless -
(a) on an application made by the prosecutor or the defendant before the defendant pleads to the charge, the court decides under subsection (3) that the charge is to be tried on indictment; or
(b) this Code or another written law expressly provides to the contrary.
(3) The court may decide the charge is to be tried on indictment if and only if it considers -
(a) that the circumstances in which the offence was allegedly committed are so serious that, if the defendant were convicted of the offence, the court would not be able to adequately punish the defendant;
(b) that the charge forms part of a course of conduct during which other offences were allegedly committed by the defendant and the defendant is to be tried on indictment for one or more of those other offences;
(c) that a co-accused of the defendant is to be tried on indictment;
(d) that the charge forms part of a course of conduct during which other offences were allegedly committed by the defendant and others and the defendant or one of the others is to be tried on indictment for one or more of those other offences; or
(e) that the interests of justice require that the charge be dealt with on indictment.
(4) For the purposes of making a decision under subsection (3) the court -
(a) may require the prosecutor to provide any information the court needs and may hear submissions from both the prosecutor and the defendant; and
(b) may adjourn the proceedings.
(5) If under subsection (3) the court decides that the charge is to be tried on indictment the court shall -
(a) give reasons for the decision; and
(b) deal with the defendant in accordance with Part V of the Justices Act 1902.
(6) A decision cannot be made under subsection (3) after the defendant has pleaded to the charge.
(7) A decision made under subsection (3) is final and cannot be appealed.
(8) If the court convicts the defendant of the offence charged (whether after a plea of guilty or otherwise), the defendant is liable to the summary conviction penalty provided for the offence, unless the court commits the defendant for sentence.
(9) If the court -
(a) convicts the defendant of the offence charged after a plea of guilty; and
(b) considers that any sentence the court could impose on the defendant for the offence would not be commensurate with the seriousness of the offence,
the court may commit the defendant to a court of competent jurisdiction for sentence.
(10) A defendant who is committed for sentence under subsection (9) is liable to the penalty with which the offence is punishable on indictment.
..."
45 Section 9(1)(a) of the MDA (set out above) provides a summary conviction penalty for offences under s 6(1)(a) where the quantity of the prohibited drug is less than that specified in Sch III, which for methylamphetamine, is six grams.
46 The procedure prescribed by s 5 is to be followed in respect of a charge which is before a Court of Petty Sessions on a complaint. In this case, the charges before the Court of Petty Sessions were ultimately dismissed without proceeding to trial or plea.
47 Section 5 contemplates that where the Court of Petty Sessions decides under s 5(3) that the charge is to be tried on indictment, it is to deal with the defendant in accordance with Pt V of the Justices Act (s 5(5)). Part V sets out the procedures for the committal of charges on indictment.
48 Section 5 applies if the law creating the offence provides a summary conviction penalty for an indictable offence and the person is charged with that offence (in circumstances in which it is triable summarily), on a complaint in a Court of Petty Sessions.
49 It must be noted that what the section is talking about is an indictable offence - that is, one in respect of which the District Court would have jurisdiction (unless it carried a maximum penalty of life imprisonment).
50 Clearly enough, s 5 would not apply to a person charged with such an offence immediately upon an ex officio indictment in a superior court, because there would be no charge before a court of summary jurisdiction upon which it could operate. The superior court would have the jurisdiction to try the charge because it is a charge of an indictable offence.
51 The question is whether s 5 as amended in 2004 operated to deny jurisdiction to the District Court where a charge of an indictable offence was put before it by way of an ex officio indictment.
52 Prior to the 2004 amendment, s 5 gave a defendant charged with an indictable offence for which a summary conviction penalty was provided, a right of election to be tried summarily.
53 The amended s 5 substantially reversed that position by making such offences presumptively to be tried summarily unless the court decided otherwise for one or more of the reasons in s 5(3).
54 Prior to the amendment, the jurisdiction of the Court of Petty Sessions arose from, and depended upon, the defendant's election. Thus, in Jones v Moffatt, unreported; SCt of WA; Library No 990196; 31 March 1999, McKechnie J held that where the defendant did not elect summary trial, further proceedings before a Court of Petty Sessions were a nullity.
55 In so holding, McKechnie J followed In re Feldt (1910) 13 WALR 28 and Herlihy v Crook, unreported; SCt of WA; Library No 6354; 10 July 1986. Each of those cases, as was Jones v Moffatt, were concerned with whether a court of summary jurisdiction had jurisdiction to deal summarily with a defendant on a charge of an indictable offence which the legislation allowed to be dealt with summarily if the defendant so elected. Each case turned on the defendant's fundamental right to be tried by a jury for an indictable offence. The procedural requirement that the defendant elect summary disposition was no mere formality, as it was a waiver of a fundamental right, and so had to be complied with strictly. The election of the defendant was accordingly a condition precedent to the exercise of jurisdiction by the Court of Petty Sessions.
56 There is an editorial observation in "Criminal Law Western Australia" (Butterworths) at Vol 1, [5.7] that although the procedure was substantially changed by the 2004 amendment, there is no reason why the principles in Jones v Moffatt, that jurisdiction depends upon compliance with the procedural provisions, should not remain sound. However, as the author then goes on to reiterate, the (post-amendment) presumption is for summary trial and, absent express statutory provision under s 5(2)(b), the processes of committal are enlivened only by an application under s 5(2)(a).
57 The provisions in s 579 of the Code authorising the Attorney General, or a person appointed, to present an ex officio indictment are, in my view, provisions which expressly provide to the contrary of the otherwise mandatory procedure in s 5(2). The section accordingly did not operate to prevent the presentation of count 4 ex officio, nor to prevent the exercise of jurisdiction by the District Court which it otherwise had over the charge as being one of an indictable offence. But that is not the only reason this ground does not succeed. There are two others.
58 First, even were s 579 of the Code not to fall within s 5(2)(b), those two provisions have to be read together and the latter is to be taken as limiting the operation of the former only if, and to the extent, that consequence must necessarily follow from its terms. There is a strong presumption that the legislature does not intend to contradict itself but intends (apparently conflicting) statutes to operate within their given sphere (per Fullagar J in Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 at 276; see also In re Chance [1936] Ch 266, per Farwell J at 270; Re Applications of Shephard [1983] 1 NSWLR 96). Thus, in R v Chalak [1983] 1 NSWLR 282, the New South Wales Court of Criminal Appeal held that a power to deal with an offence summarily did not displace a provision providing for an indictable offence for the same conduct. The Court (Street CJ, Moffitt P and Yeldham J) held that the principle to be applied was whether, in the latter legislation, there was manifested an intention to exclude the operation of the earlier. No such intention was manifested in that case; the intention was, rather, to make it possible to choose between the offences according to the gravity of the conduct in a particular case.
59 I do not accept that the legislature here intended s 5 of the Code to operate so as to limit the power of the Attorney General or other authorised person to present an ex officio indictment to cases only in respect of offences not already charged on complaint.
60 Such a construction would impose a significant limitation on the power, as all charges of offences commence procedurally with the laying of a complaint in a Court of Petty Sessions (now called Magistrates Courts since 1 May 2005 - see s 4(1) Magistrates Court Act 2004 (WA)).
61 It would be surprising if the power of the Attorney General or other authorised person to prosecute a charge before a Judge and jury on an ex officio indictment could have been pre-empted by a police or other prosecutor laying a complaint in a Court of Petty Sessions - and which complaint then must be dealt with summarily unless the conditions in s 5(3) were met.
62 Furthermore, there is nothing in the Second Reading Speech concerning the 2004 amendment which suggests parliament intended s 5 to fetter the operation of s 579 of the Code - indeed, the legislative purpose indicates otherwise.
63 In his Second Reading Speech on the Criminal Code Amendment Bill 2003 the Hon Attorney General (Mr McGinty MLA) said ("Hansard", Legislative Assembly, Thursday, 3 April 2003, 6151) at 6159:
"Reform of the process for dealing with the trial of either-way offences - that is, offences that may be tried either summarily in the Court of Petty Sessions or on indictment in the District Court - is addressed in part 7 of the Bill. As the criminal law in this State currently stands, if a defendant is charged with an indictable offence that may be dealt with summarily, he or she may, with some exceptions, elect to have the matter heard either summarily or on indictment. This arrangement results in many matters of lower levels of seriousness being dealt with in the District Court. The effect is delay in more serious matters coming to trial and waste of valuable resources. The amendments provide that either-way offences must be tried summarily unless a Court of Petty Sessions decides that the matter cannot be dealt with adequately in a summary way. With the intention of pushing less serious indictable matters into the summary courts, part 7 also reclassifies some indictable offences as either-way offences and at the same time gives the summary courts the scope to punish them in a serious way."
"Part 7 of the Bill introduces a single mechanism for dealing with 'either way offences' [sic] - that is, indictable offences which can either be tried summarily in the Court of Petty Sessions or on indictment in the District Court. Under the proposed new arrangement, all 'either-way offences' must be tried summarily unless the Court of Petty Sessions itself decides otherwise or another written law expressly so provides. The Part also creates several new 'either-way offences'.
New procedure for either-way offences
In Western Australia, the Criminal Code and other legislation authorises the summary determination of indictable offences. At present, if a defendant is charged with an indictable offence that can be dealt with summarily he or she is able, with some exceptions, to elect whether or not to have the matter heard summarily. Once a defendant elects for summary trial the Magistrate proceeds to a summary trial unless he or she determines that the matter cannot adequately be dealt with in summary fashion. If the Magistrate so determines, then he or she commits the defendant to a higher court for trial or sentencing, as the case may be.
The exceptions to the present rule are sections 426(2a) of (3) of the Criminal Code and section 23D(2) of the Firearms Act 1973. Where an offence is one to which these provisions apply, the prosecutor may request a Court of Petty Sessions to try a matter and the Court must comply with such a request.
By giving defendants a general right of election, the current system means that certain cases which could be dealt with adequately by a Court of Petty Sessions are heard by judge and jury. This is very wasteful of costly judicial, prosecutorial and other Court resources, and, given the current backlog in the District Court, this is a problem of considerable weight. Moreover, the current system does not pay sufficient regard to the interests of victims and witnesses, which are best promoted by expediency in the Court process. The current system also enables the accused to decide the mode of trial in pursuit of his/her personal interests, such as a belief that a jury trial will increase his/her chances of success. This is not appropriate. A system which enables the court to decide the mode of trial on the basis of clearly stated criteria is a better way to ensure justice and fairness." (My emphasis)
65 The Hon Attorney described similar legislative proposals in the United Kingdom and the Australian Capital Territory and then returned to the Bill before the House (at 6169):
"This Bill proposes to repeal the current section 5 of the Criminal Code and replace it with a new section 5 which adopts many of the features of the legislation outlined above. Essentially, the new section 5 provides a single mechanism whereby all 'either-way offences' must be tried summarily unless the Court of Petty Sessions decides otherwise. The Court may decide otherwise on an application made by the prosecutor or the defendant before the defendant pleads to the charge if and only if it considers that -
(a) the circumstances in which the offence was allegedly committed are so serious that, if the defendant were convicted of the offence, the court would not be able to adequately punish the defendant;
(b) the charge forms part of a course of conduct during which other offences were allegedly committed by the defendant and the defendant is to be tried on indictment for one or more of those other offences;
(c) a co-accused of the defendant is to be tried on indictment;
(d) the charge forms part of a course of conduct during which other offences were allegedly committed by the defendant and others and the defendant or one or more of the others is to be tried on indictment for one or more of those other offences; or
(e) the interests of justice require that the charge be dealt with on indictment.
This final ground is necessary as the grounds contained in (a) to (d) do not adequately cover all situations in which trial by indictment may be appropriate. For example, trial by jury may be necessary in particular circumstances so as to establish contemporary community standards. As it is impossible to foresee all the circumstances in which trial by indictment may be appropriate, a general 'catch-all' ground is necessary.
The only other situation in which a Court of Petty Sessions may try an 'either-way offence' on indictment is if the Code or another written law expressly provides.
The Bill also requires that, where the court decides that a charge relating to an 'either-way offence' is to be tried on indictment, it must state its reasons. Such a decision, however, is final and cannot be appealed."
66 The penultimate paragraph in the last passage refers to a Court of Petty Sessions trying an "either-way offence" on indictment, but such a court cannot try any offence "on indictment" and nor does s 5 contemplate that. It contemplates the trial of offences on complaint. The comment must be a reference to a Court of Petty Sessions deciding a charge is to be tried on indictment (in a superior court).
67 There is no indication in the Second Reading Speech that the amendment of s 5 was intended to, or would result in, any limitation of the power to file an ex officio indictment under s 579 of the Code.
68 The mischief at which the amendment was directed was the waste of judicial, prosecutorial and other court resources consequent upon defendants being able to elect trial on indictment in cases which could be adequately dealt with in Petty Sessions. It was not intended to make the designated offences summary offences which could never be tried on indictment. They remained indictable offences and the amendment allowed for their trial on indictment on certain conditions. There are relatively few ex officio indictments presented. They could not be apprehended as a significant factor in the work of the District Court. By their nature, they do not depend on any election by a defendant.
69 The next reason this ground must fail is because the charge in count 4 was not in fact before the Court of Petty Sessions on complaint. Before that Court were four separate charges relating to the different individual amounts of prohibited drug. The charge with which the appellant was charged in count 4 was, strictly, a different charge, albeit referable to the same amounts, taken as a single amount. That charge not being before the Court of Petty Sessions on complaint, it did not fall within the scope of s 5.
70 The appeal against conviction fails for the reasons given above.
71 When the appellant was arraigned on the 25 November indictment, he pleaded not guilty to the first three counts but said, when count 4 was put to him: "Guilty, sir, of just supply."
72 When later outlining the facts for the purpose of sentence, the State prosecutor described the various amounts of drug and where they were found. He referred to the fact that there were a small number of "deal" bags located in the appellant's car and a set of electronic scales with traces of methylamphetamine on it, but said that was the only indicia of dealing. He then added (t/s 177):
"The accused has said, I think when he entered his plea - supply only, I think is what he mentioned. There is no real evidence of a real commercial dealing here. There was $50 found upon him and there's been no search of any premises where he lived to indicate that there was a large amount of property that he was acquiring or anything of that nature."
73 During the plea in mitigation by counsel for the appellant, the Judge noted that the bigger amount of the drug was "quite pure - 56 per cent". Counsel said about 3.5 grams of that was between 56 to 62 per cent purity. His Honour then said that there were scales found in the car and there were "these parcels" although the appellant, when he pleaded guilty to that offence, said he was admitting supply rather than sale. Counsel said that was correct and that in her discussions with the State prosecutor earlier, he had indicated there was no opposition to the fact that the plea would be entered on that basis because the State's view was that there was not sufficient evidence to put before the jury that the appellant's purpose was for sale. She went on (t/s 185):
"The reality is Mr Pepper at that stage was a significant user of the drug and it was his habit that he would share his drugs - in fact, I think his evidence at trial was that he was in fact going over to his friend's house, who lived in the block of units where the car ended up outside, and his intention was to go and share drugs with that person at that stage, hence the drugs on him at that time."
74 On this point, the then (different) State prosecutor said (t/s 186):
"In relation to the methylamphetamine my friend correctly states that the state [sic] did accept the plea on the basis that it was supply rather than commercial sale. In relation to drug paraphernalia, there were deal bags, scales and three phones found in the car, and there was the most significant amount of the drug, which was approximately 3.5 grams, was 56 per cent purity, so clearly above user level and certainly could be cut much further. So the state [sic] says that is a very serious offence in itself."
75 In his sentencing remarks, the Judge said, in relation to the circumstances of count 4 (t/s 188):
"A search of the car that you had abandoned was then conducted and methylamphetamine was found in the car, some three and a half grams in total, and the main parcel was a parcel of 56 per cent pure found in a cigarette packet in the car.
There was also a small quantity, .17 of a gram, 62 per cent pure, found in a mobile phone pouch around your neck, and there were other small parcels. In addition to the drugs there were found in the car a set of electronic scales with traces of the drug on them and other items which can be described as paraphernalia related to drug dealing. It has been accepted, and I proceed for purposes of this sentencing, that you were in possession of these drugs for purposes of supply to others."
76 Later, when "looking for factors" to take into account in the appellant's favour, his Honour noted the plea of guilty in relation to count 4 but observed that "of course, [the appellant's] conviction in relation to that matter was clearly inevitable, given the chase and given [his] apprehension and the finding of the drugs in the car." Nonetheless, his Honour acknowledged it was a plea of guilty and that the appellant was entitled to some credit in that respect.
77 A little later, having adverted to the appellant's time in custody, his Honour reiterated that the offences were serious and he was of the view that immediate terms of imprisonment were necessary. He said the methylamphetamine offence was a serious offence even if there was no commercial aspect to it - even if there was no attempt to sell it, the supply of methylamphetamine to others is a serious offence in itself, he said. His Honour observed the supply of methylamphetamine is destructive of persons and of the community, and the courts have said many times and with great emphasis, that it is necessary to punish such offences very severely. His Honour then proceeded to impose sentence in respect of count 4, again saying he bore in mind the appellant's plea of guilty. He said prior to the amendment of the sentencing legislation he would have imposed a sentence of 3 years' imprisonment, but by reason of the amendments he was obliged to reduce that to 2 years, which was the sentence he imposed.
78 In her submissions, counsel for the appellant contended that his Honour had overlooked objective facts which, in her submission, would take this case out of the most serious category for offences of the kind. In particular, it is submitted that his Honour took no account of the fact that the appellant was a user and that part of the methylamphetamine was for his own use; that this was a matter which "was to have been dealt with" in the Court of Petty Sessions; and that the basis of the plea was supply, not sale. Although quantity of the drug is a relevant matter, it is not determinative (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584). It is further submitted that his Honour erred in taking into account matters indicating commercial enterprise which was not conceded by the applicant in his guilty plea and was not the State case.
79 The first point to be made about this ground is that the plea was inappropriate. A charge under s 6(1)(a) MDA of possessing a prohibited drug with intent to sell or supply is a composite offence. If an offender says the whole of the quantity was for supply only, the plea is still simply one of guilty.
80 In R v Collins (1993) 67 A Crim R 104 the offender had been sentenced to 15 months' imprisonment for possession of 1.2 kilograms of cannabis with intent to sell or supply. He pleaded guilty. The information put before the Judge by the prosecution included that the cannabis was packed in snap-lock bags in a form suitable for commercial distribution.
81 In the plea in mitigation, counsel for the offender said the plea of guilty was intended to apply only in relation to some of the drug in the offender's possession, it being submitted that most of the cannabis was intended for his personal use and only a small portion for supply to friends. The Judge sentenced the offender on the basis that his intention was to sell the cannabis. The principal ground of appeal was that the Judge erred in sentencing him on the disputed facts without requiring further evidence.
82 The Western Australian Court of Criminal Appeal refused leave to appeal against sentence, holding that the explanation offered from the Bar table in mitigation was inconsistent with the plea of guilty and with the statutory presumption arising from the quantity of the drug in the offender's possession, by virtue of s 11 of the MDA. It was held that having pleaded guilty to the offence charged, it was not open to the offender to attempt to rebut the presumption with respect to part of the quantity by means of a plea in mitigation.
83 In his reasons, Malcolm CJ pointed out that the Act draws no distinction between an intention to sell or an intention to supply. They are not two separate offences but one offence of possession with intent to sell or to supply. His Honour pointed out that the essence of the offence is possession with intent to distribute the drug and then observed (at 106):
"No doubt, a case which involves an intention only to supply to friends on a casual basis may attract a lesser sentence than a case which involves an intention to sell on a commercial basis."
84 His Honour referred to R v Aloia [1983] WAR 133 and a passage from the judgment of Burt CJ at 136 to the effect that where an issue is raised with respect to facts going beyond the elements of the offence but are relevant to culpability, a sentencing Judge can safely rely upon the statement of material facts made by the prosecution unless as to facts extending beyond the elements of the offence, they are challenged by the prisoner. Malcolm CJ then said that in that case, the Court was not concerned with allegations of fact going beyond the elements of the offence, but rather an explanation offered from the Bar table which was inconsistent with an admission of the elements of the offence. The only way that could be contested would be by a plea of not guilty. His Honour said (at 106):
"Having pleaded guilty to the offence of possession of the cannabis with intent to sell or supply it and the quantity having been shown to be 1.2 kg, it was not open to the applicant to attempt to rebut the presumption with respect to a part of the quantity by means of a plea in mitigation. It would be possible for him to put forward in mitigation what quantity he intended to supply. It may be that he could put forward that he intended to supply all of it and not to sell any of it. In my opinion it was not open to the applicant to proceed in the way in which he did in this case."
85 Pidgeon J gave separate comments to essentially the same effect. Nicholson J agreed with Malcolm CJ and Pidgeon J.
86 Insofar as it was held in Collins that a plea of guilty is an admission that the offender had the intent to sell or supply the whole quantity of the drug found in his possession, it was overruled by a Bench of five Judges in R v Marker [2002] WASCA 282; (2002) 135 A Crim R 55.
87 The rationale for that conclusion, as Malcolm CJ explained at 57, is that a plea of guilty is an admission only of the essential elements of the particular offence and for an offence under s 6(1)(a) of the MDA, the elements are:
The quantity found in the possession of the offender is not an element of the offence. Thus, an accused may enter a plea of guilty to offences charged and reserve the right to contend that the intention to sell or supply did not extend to the whole quantity of the relevant drug in their possession, but only to some part of it.
88 Clearly enough, in principle the same must apply to the issue whether the purpose of the possession was for sale on the one hand or supply on the other.
89 In Marker the significant point in respect of the offender's culpability was contended to be how much of the prohibited drug in his possession was for personal use and how much was for sale. As to that, Murray J said (at 61):
"... so far as the possession with intent was concerned, the judge was not required to make a finding as to what portion of the drug the applicant may have used himself and what portion he may have sold or supplied to others. In this case, as in the vast majority of cases, the intention of the applicant about such matters would carry little weight and the Crown did not seek to prove that the applicant's possession of the larger quantity of drug was solely for commercial purposes, a matter commonly regarded by the courts as an important factor in aggravation of sentence.
The relevance of the quantity of the drug in the applicant's possession with intent to sell or supply is, of course, that there is the potential for decisions to be made by the offender which would see at least a substantial portion of the drug disseminated in the community with the potential for harm resulting from the deleterious effects of the drug upon the consumer, as well as the danger of the commission of serious criminal offences for the purpose of satisfying the addiction to or craving for the drug which is a common result of its consumption. These are central mischiefs which the Misuse of Drugs Act is intended to combat although, of course, concentration upon the quantity of the drug possessed by the offender may, it is appreciated, lead to other relevant factors being overlooked or being downgraded in importance and thus may lead to error in the sentencing process: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 597 [31], 604-605 [54]-[56]."
"In cases such as this, it has been recognised by this Court that the dangerousness of this drug and the harm it can cause is such that the predominant aim of a judge in sentencing is both particular and general deterrence. The capacity or factors personal to the offender to mitigate punishment is correspondingly reduced: Bellissimo v The Queen (1996) 84 A Crim R 465 at 471 per Anderson J."
91 On the issue of intent with respect to quantity, Anderson J said (at 69) that the starting point is the natural inference which arises when a person is found in possession of a quantity of prohibited drug and it is proved or admitted that he was in possession of it with an intent to sell or supply it. As his Honour said, the only reasonable inference from those facts is that the intent extends to the whole quantity in the offender's possession; they do not give rise to an inference that the person intended to sell only some of it. Accordingly, if a defendant, against whom guilt of intent is established, wishes to be sentenced on the basis that was with respect to some lesser portion than the quantity found, he must carry the burden of establishing that fact. However, his Honour would not accept that a finding must always be made (even in user/dealer cases) as to how much of the prohibited drug found, was intended for the offender's own use and how much was intended for sale or supply. In many cases it would be "a wholly unreal exercise".
92 Anderson J also dealt with the public purpose behind the creation of offences of this kind. At 71 he pointed out that the major sentencing considerations are to put a stop to the drug trade and discourage would-be offenders and to protect the community from criminality driven by drug craving. With those objectives in mind he was not persuaded there is any principle that dealers who are also drug addicts should be treated more leniently simply because they are drug addicts.
93 Finally, his Honour referred to the reduced role of personal mitigating factors when sentencing for drug offences involving the dissemination of prohibited drugs within the community (at 71 - 72):
"In serious drug offences, personal mitigatory factors must be weighed against the imperative need to pass sentences having a deterrent effect. It is the experience of this Court that people actively involved in the drug trade are often young men and women with good antecedents, good prospects and many personal attributes. However, the undeniable fact is that they are always in it for money, as the applicant obviously was in this case, and it must always be borne in mind that dealing in amphetamines is enormously harmful and is a very serious offence, the maximum penalty for which is 25 years imprisonment. In the six years that have passed since this Court handed down its judgment in Bellissimo, I have had no reason to qualify the view which I expressed in that case (at 471):
'Amphetamine trafficking is now recognised by the court to be in the higher range of seriousness in the scale of drug trafficking offences. As a result of this, reference to earlier sentencing decisions is no longer a safe guide to the level of sentencing for current cases.
The major sentencing considerations for offences of trafficking in dangerous drugs of addiction such as amphetamines, cocaine and heroin are general and personal deterrence, the major objective being to stop people doing it. It is quite obvious to anyone concerned with criminal justice administration that trafficking in amphetamines is rife in this State and part of its tragedy is that very young people in the community are being exposed to it. This has caused widespread community concern. The sentences that have been imposed in the past do not seem to have worked as a deterrent.'"
94 Collins was followed by Perry J in R v Selita [2004] SASC 292; (2004) 149 A Crim R 243, although it seems not to have been brought to the Court's attention that Collins had by then been overruled in Western Australia.
95 In Selita the appellant had pleaded not guilty to possession for sale but guilty to possession for supply. The prosecution refused to accept the plea and there was a disputed facts hearing. The sentencing Judge held the possession was for sale and sentenced the appellant on that basis. The South Australian Court of Criminal Appeal held that the procedure adopted on the taking of the plea was irregular. The charge was one of possessing cannabis for sale or supply, the statutory expression of the offence being in that respect similar to s 6(1)(a) of the MDA. Both Perry and Gray JJ referred to R v Hoang [2002] SASC 262; (2002) 83 SASR 254 in which the Court held that the South Australian provision created only one offence and that a charge of possession for sale or supply was not duplicitous by charging two different offences. The section seeks to penalise the act of possession with intent to distribute. There can be more than one purpose for possession and more than one method of committing the same offence. Accordingly, as Perry J pointed out (at [34]), when the appellant pleaded "not guilty for sale but guilty to supply" and the prosecution indicated the plea was not accepted in satisfaction of the charge, the proper course was for the Judge to treat the plea as one of not guilty. It should be noted however, that the reasoning in that case turned upon the particular statutory context. It had been explained by Doyle CJ in R v Rowan [2003] SASC 138; (2003) 85 SASR 364 at 368 where, after referring to Hoang, the Chief Justice explained the prosecution may lay a charge alleging one only of the specified purposes or one only of the specified methods of committing the offence. Thus a defendant may be charged with possession for the purpose of sale and in that event, to obtain a conviction, the prosecution must prove that particular purpose existed. Alternatively, it might charge possession for the purpose of sale and supply, in which event they would then have to prove that each of those intentions existed, presumably as to different parts of the total quantity of the substance in question. It was in light of that operation of the South Australian statutory provision that in Selita the Court held it was not open for the appellant to plead to only one of the two modes by which the offence might be committed when the prosecution wished to proceed with respect to both.
96 In passing, it should also be noted that s 44 of the Controlled Substances Act 1984 (SA) set out various matters to be considered when the court was fixing penalties for breaches of the Act. Those included "the commercial or other motives of the convicted person in committing the offence". There is no similar provision in the MDA, but as Murray J pointed out in Marker in the passage which I have set out above, possession for commercial purpose is a matter commonly regarded as an important factor in aggravation of sentence. That being so, if asserted by the prosecution and disputed by the defence, that purpose must be proved beyond reasonable doubt (Aloia, (supra); Langridge v The Queen (1996) 17 WAR 346; R v Olbrich [1999] HCA 54; (1999) 199 CLR 270).
97 As argued, the complaint advanced by ground 1 is in substance that in sentencing in respect of count 4, his Honour failed to take what Ms Prince described as the "objective circumstances" into account. She identified these as the weight or quantity of the drug and the fact that the appellant was a user and had the drug for his own use and was to supply to friends, not to sell for commercial gain. Her argument advanced on the quantity point was that his Honour did not allow for the fact that the quantity was such that the offence could have been dealt with in the Court of Petty Sessions where the maximum penalty on summary conviction was 4 years' imprisonment. She conceded, correctly, that as the charge was on indictment, the statutory maximum penalty was 25 years' imprisonment and a fine of $100,000.
98 On ground 2, it is said that the Judge was in error in regarding the plea of guilty as a late plea. In fact, as the charge was presented on an ex officio indictment and the accused pleaded guilty immediately the indictment was presented, it was a plea made at the earliest opportunity and his Honour should have given a greater sentencing discount for it.
99 On that last submission, Ms Prince acknowledged that counsel for the appellant before the primary Judge told his Honour that it was a late plea. However, she maintained that although that was the reason for his Honour's error and so could not be attributed to him, nonetheless his Honour erred in acting upon that information and not giving a greater discount than he did.
100 The material before us goes no higher than to show that the appellant's then counsel had a discussion with the prosecutor two weeks before the trial, in which she agreed to the proposal to present count 4 by way of an ex officio indictment, saying that the appellant "had always indicated" he would plead guilty to that on the basis his possession was to supply. A plain reading of that material conveys only that the "indication" was one which was given to counsel. It was not a formal indication, much less a plea, to any court and there is no suggestion it was ever conveyed to the prosecution before the telephone conversation referred to. And, "indication" merely to one's counsel that an offender intends to plead guilty is not something which can attract a sentence reduction based on an early plea. In fact, the Judge here did take it into account and said he gave the appellant some credit for it. The extent of any reduction in sentence for that could not have been substantial for the reasons his Honour noted (quite apart from the fact no plea nor formal indication of it was given until two weeks before trial), given the police chase, the appellant's apprehension and the finding of the drugs in the car, his conviction on that count was inevitable. His Honour did not quantify the discount he gave for the appellant's plea of guilty, but he was not required to (Markarian v The Queen [2005] HCA 25; (2005) 215 ALR 213). There is no substance in this point.
101 Nor am I persuaded that his Honour overlooked or failed to have regard to the objective features of the offence. He expressly said that he was sentencing the appellant on the basis he was in possession of the various quantities of the drug for the purpose of supply to others. He recognised that the appellant had a drug problem and that he had committed this offence (as others in the past) as a result of his drug addiction. At no time had it been suggested to his Honour how much of the drug the appellant had intended for his own use and how much for supply to others. It was not possible for his Honour to take any view other than that "some" of the drug was intended by the appellant for his own use. His Honour correctly pointed out that the methylamphetamine offence was a serious one even if there was no commercial aspect to it. He rightly noted the supply of methylamphetamine to others is a serious offence because the supply of it is destructive of persons and of the community. That observation reflected his Honour's appreciation that the mischief to which the offence is directed, in either of its aspects, is the dissemination of drugs to others in the community and that methylamphetamine is a particular concern in this respect because of its potential to generate other serious offences (see also R v Darwell (1997) 94 A Crim R 35). These were the concerns identified by Murray and Anderson JJ in Marker in the passages quoted or referred to above.
102 It is significant that the statutory maximum penalty is the same irrespective of whether the possession of the prohibited drug is for sale or for supply - or indeed, of whether either particular purpose can specifically be attributed to the offender (so long as it can be established beyond reasonable doubt, or admitted, that it was for one or other of them).
103 The distribution or dissemination of a prohibited drug for commercial gain would ordinarily be regarded as increasing the criminal culpability of the offender beyond that where possession is solely for the purpose of supplying to friends or others. But that is only because the element of financial gains adds another degree of moral and criminal culpability. As the authorities make clear, the essential evil at which the law is directed is the dissemination of prohibited drugs within the community, however done. The social consequences include addiction and destruction of individuals, families and communities, quite apart from the extraordinary number of other serious criminal offences (such as aggravated burglaries, armed robberies and the like) generated by people affected by drugs or seeking money to buy drugs. These consequences follow irrespective of whether the drug was sold or simply supplied in some other way.
104 Whilst the Judge did not specifically state that the quantity of the drug was such that the offence could have been dealt with summarily, there was no particular reason why he should have done so. I do not accept the submission that his Honour erred in taking into account "matters indicating commercial enterprise" which was not conceded by the appellant in his guilty plea and was not the State case. His Honour clearly said he was not sentencing the appellant on the basis it was a commercial enterprise. The factual matters to which he referred did, however, illuminate and colour the nature of the supply and his Honour was right to have regard to them in that way.
105 While it is true the quantity here was not large (just under 4 grams), the bulk of it was of 56 to 62 per cent purity. That is close to ten times street level purity. The paraphernalia found with the drugs suggests supply of a significant kind. Whilst the sentence of 2 years' imprisonment (equivalent to a 3 year sentence imposed prior to 31 August 2003) is towards the higher end of the range for the particular offence, it cannot be said to be outside that range. These grounds have not been made out.
106 That the law allows the joinder of charges of offences for the purposes of trial, does not mean that sentences imposed in respect of those separate offences must be concurrent as being part of one transaction. It might indeed be arguable whether count 4 could properly have been joined under s 585 of the Code, but for obvious reasons, no point is taken about that and I express no view on it.
107 I do not agree that these offences are properly to be characterised as "one transaction".
108 As a general principle, where a number of offences arise out of the same transaction, the sentences imposed should usually be made concurrent (R v Ruane (1979) 1 A Crim R 284). But the fact that a number of offences are committed soon after one another in time or even at the same time does not necessarily make them part of the one transaction in the sense in which that expression is used in this context (Coyne v The Queen, unreported; CCA SCt of WA; Library No 2325; 1 May 1978) although there is a practice of often treating a succession of crimes, each being the commission of the same or closely related offences, committed within a short space of time, as appropriate for concurrent sentences (Esteban v Wolpers, unreported; SCt of WA (Nicholson J); Library No 7376; 16 November 1988). In Esteban, Nicholson J referred to R v Brown (1982) 5 A Crim R 404, 407 and Attorney-General (SA) v Tichy (1982) 30 SASR 84. In the latter case, Wells J pointed out (at 92 - 93) that sometimes a number of acts by an offender can be technically identifiable as specific separate offences but yet comprise a single multi-faceted course of criminal conduct; conversely, those separate acts may comprise two or more courses of criminal conduct that may properly be characterised as separate invasions of the community's right to peace and order. In the former situation, concurrent sentences will usually be just and convenient; in the latter, cumulative sentences will generally be appropriate.
109 In R v Shaw (1989) 39 A Crim R 343, referring to Thomas "Principles of Sentencing" (1st Ed 1970), Brinsden J said (at 347):
"... the fact that two offences occur close together in time does not necessarily mean they will be treated as part of the one incident, 'if they are essentially different in character and involved different subject matter'. At p 53 by the same author, it is stated 'where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive'. That is because the offences, when taken together, constitute a single invasion of the same legally protected interest. But the fact that offences are committed simultaneously, or close together in time, does not necessarily mean they amount to a single transaction ..."
110 Here, the taking of the Lexus motor vehicle occurred on 18 October 2003. That was part of the stealing and driving recklessly offence on 15 January 2004. It had no connection with the appellant's possession of prohibited drugs on 15 January 2004. The assault on Constable Mills followed a police pursuit. The police were chasing the appellant because of the stolen Lexus. When he was apprehended, the drugs were found in the car. Although occurring at the same time, each of the offences were, to use the language of Wells J in Attorney-General (SA) v Tichy, "separate invasions of the community's right to peace and order". What his Honour was called upon to do was impose sentences which were appropriate to each of the offences, but also, in their aggregate, were proportionate to his overall criminality in the commission of the offences (Pearce v The Queen (1998) 194 CLR 610). That is what his Honour did.
112 I would dismiss the appeal against conviction, and refuse leave to appeal against sentence.
113 PULLIN JA: I have read the reasons of Roberts-Smith JA who has set out the facts and identified the issues in this case.
114 Subject to my own consideration of the jurisdictional issue concerning the District Court, I agree with his Honour's reasons.
115 In relation to the jurisdictional issue, it is not necessary for me to set out the legislation because Roberts-Smith JA has done so. I also refer to Bounds v The Queen [2005] WASCA 1, where Steytler and McKechnie JJ traced through the history of part of the relevant legislative framework.
116 The appellant's submission was that the District Court had no jurisdiction to deal with count 4 because of the provisions of s 9 of the Misuse of Drugs Act 1981 (WA) and s 5 of the Criminal Code. In my opinion the District Court's jurisdiction to deal with crimes (and count 4 alleged an offence under s 61 of the Misuse of Drugs Act which is designated as a crime) is not diminished by the sections referred to by the appellant.
117 Section 9 of the Misuse of Drugs Act refers to what is to happen if a person is charged before a court of summary jurisdiction. It provides what is to happen in relation to penalty in those circumstances, that the court must be constituted by a Magistrate sitting alone, and if the court of summary jurisdiction decides that, instead of dealing with the matter itself it commits an accused for trial or sentence, the court to which the accused is committed may then deal with the charge despite the matters referred to in s 9(3). Section 5 of the Criminal Code only applies if a person is charged before a court of summary jurisdiction. See s 5(1).
118 If an ex officio indictment pursuant to s 579 is presented to the District Court, then neither s 9 of the Misuse of Drugs Act or s 5 of the Criminal Code have any application, because the accused is not in those circumstances "charged before a court of summary jurisdiction".
119 It is true that the appellant was originally charged "before" a court of summary jurisdiction with the offence under s 6(1), but the agreement between the parties was that the ex officio indictment would be presented
in the District Court and the charges in the court of summary jurisdiction would be dismissed. That is what happened.
120 The appeal against conviction should be dismissed and there should be a refusal of leave to appeal against sentence.
121 LE MIERE AJA: I have read the reasons of Roberts-Smith and Pullin JJA. In relation to the jurisdictional issue, I agree that ground 4 of the appeal is not made out for the reasons stated by Pullin JA. Otherwise, I would dismiss the appeal against conviction and refuse leave to appeal against sentence for the reasons stated by Roberts-Smith JA.
Pepper
The State of Western Australia [2005] WASCA 177
(1982) 30 SASR 84
(1961) 106 CLR 268
(1996) 17 WAR 346
(2005) 215 ALR 213
(1998) 194 CLR 610
(2002) 83 SASR 254
(2001) 162 FLR 313
(2003) 85 SASR 364
(1999) 199 CLR 270
(2001) 207 CLR 584
(1980) 147 CLR 75
(2003) 27 WAR 330
(1993) 20 WAR 201
(2002) 26 WAR 336
(1999) 195 CLR 665
(1988) 1 WAR 343