R v DUNLOP No. SCCRM-02-359 [2002] SASC 383

The defendant pleaded guilty before me to a charge of possessing cannabis for sale.

The particulars of the offence set out in the information are as follows:

Possessing Cannabis for Sale. (Section 32(1)(e) of the Controlled Substances Act 1984).

Daniel William Dunlop on the 2nd day of February 2002, at Valley View, knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person.

It is further alleged that the amount of cannabis was in excess of 2kgs."

The laying of the charge arose as a result of the attendance by police officers at the defendant's home, being a house property at Valley View, occupied by the defendant and his wife, on 2 February 2002.

Cannabis was found in various locations around the premises. It was very variable in quality, ranging from left-over stalks and leaf which had been discarded and were found in a rubbish bin, to dried cannabis head in plastic bags hidden under the kitchen floor boards.

The total weight of cannabis material was 3,772.5 grams, or approximately 3.8 kilograms.

If that was the weight of cannabis which should be regarded as in the possession of the defendant for the purposes of sale, the maximum penalty would be as defined in s 32(5)B(a)(ii) of the Controlled Substances Act 1984, namely a penalty not exceeding $50,000 or imprisonment for ten years, or both. That is the penalty applicable where the amount of cannabis or cannabis resin involved in the commission of the offence is less than the amount prescribed for the purposes of that subsection but one-fifth or more of that amount. I will describe that as the mid-range penalty. Both counsel invited me to sentence the defendant on the basis that the mid-range penalty applied.

Where the quantity of cannabis or cannabis resin equals or exceeds ten kilograms, the penalty is both a fine not exceeding $500,000 and imprisonment for a term not exceeding 25 years.

Where the quantity of cannabis or cannabis resin is less than one-fifth of the prescribed amount, the maximum penalty is a penalty not exceeding $2,000 or imprisonment for two years, or both.

The amount prescribed for the purposes of the subsection is 10 kilograms.

It follows that the allegation in the particulars of the offence that the amount was in excess of 2 kilograms was a mute indication that the informant categorised the offence for the purposes of penalty as falling within the mid-range.

During the course of his submissions on penalty, Mr Barnett, who appeared for the defendant, asserted that only a small part of the cannabis found on the premises was in his client's possession for the purposes of sale. More particularly, he submitted that of the quantity of cannabis on the premises, only two 30 gram plastic bags of cannabis head were intended for sale. Furthermore, the defendant's intention was to sell them to a relative for an amount of $20 each, which is a gross undervalue of their street value according to the evidence before me.

When Mr Barnett made that submission, I raised with him the question whether or not the concession which he had made, namely that this was in fact a mid-range offence for the purposes of penalty, could be accepted. I indicated a tentative view that the defendant fell to be sentenced only for the amount in his possession for the purposes of sale, and not for the larger amount overall which was found on the premises.

I asked Mr Phillips of counsel for the Crown whether the Crown disputed the facts asserted by Mr Barnett. The following exchange then took place between myself and Mr Phillips:

"MR PHILLIPS: The crown has nothing further to add to the facts as stated by my friend.

HIS HONOUR: The important thing for me is whether you dispute any. You don't dispute the factual scenario painted in fine detail by Mr Barnett?

HIS HONOUR: It reduces to two packets of 30 grams each for sale. Can you assist me on the question which was agitating my mind; whether it is right to sentence on the footing of possession of all for sale when it's not all in possession for sale?

MR PHILLIPS: My submission would simply be that the defendant has pleaded guilty to para 32(1)(e), in that he possessed the drug for sale. The amount that was in his possession was within the range which makes it a middle level potential penalty. The Crown cannot comment as to how much he had for sale."

"The Crown's not in a position to say the specific amount that the defendant intended to sell. There were up to 3.7 kilograms seized."

The question which arises is what approach the Court should adopt for the purposes of sentencing the defendant where it is alleged in the information that the amount of cannabis would put the offending into the mid-range for the purposes of penalty, but the facts alleged by the defendant during the course of sentencing submissions, and not disputed by the Crown, would put the offending into the lowest category.

In addressing that question, the starting point must be recognition of the principle that a plea of guilty operates as an admission of the essential elements of the offence alleged, and no more than that: see R v O'Neill:[1]

".... a plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more."

In my view, the allegation that the amount of cannabis was in excess of two kilograms is not to be regarded for the purpose of the application of that principle as an allegation of an "essential legal ingredient" of the offence. The offence is possession of cannabis for the purpose of selling it to another person.

When the defendant pleaded guilty to that offence, but asserted that the amount of cannabis in his possession for the purpose of sale was less than 2 kilograms, it was open to the prosecution to join issue as to that assertion of fact. If the prosecution had joined issue, the dispute as to facts would then be resolved in accordance with the principles made clear in cases such as R v Olbrich,[2] R v Haydon[3] and R v Lobban.[4]

However, there being no dispute as to the facts asserted on behalf of the defendant, in my view, the proper course is to sentence in accordance with the version of fact put forward on his behalf.

It follows that in this case, despite the stand taken by both counsel, it is appropriate to sentence the defendant in accordance with the lowest of the three applicable penalty ranges.

1. (1979) 2 NSWLR 582, Court of Criminal Appeal of New South Wales per Moffitt ACJ at 588, cited with approval by Olsson J in R v Perre (1986) 41 SASR 105 at 116.

2. [1999] HCA 54; (1999) 199 CLR 270.

3. (2001) 80 SASR 560.

4. (2001) 80 SASR 550.

[1] (1979) 2 NSWLR 582, Court of Criminal Appeal of New South Wales per Moffitt ACJ at 588, cited with approval by Olsson J in R v Perre (1986) 41 SASR 105 at 116.

[2] [1999] HCA 54; (1999) 199 CLR 270.

[3] (2001) 80 SASR 560.

[4] (2001) 80 SASR 550.