Supreme Court of SA|2003-05-20|Before: Doyle CJ, Nyland JJ

R v ROWAN No. SCCRM-02-371, SCCRM-02-372 [2003] SASC 138 (20 May 2003)

1 Court of Criminal Appeal: Doyle CJ, Perry and Nyland JJ

3 The appellant was sentenced to imprisonment for three years with a non-parole period of 12 months.

4 He appeals against his conviction and against the sentence imposed.

5 Section 32(1)(e) of the Act prohibits the possession of a drug of dependence or prohibited substance "for the purpose of the sale, supply or administration of that drug or substance to another person". Cannabis is a prohibited substance for the purposes of that provision.

6 The appellant was charged with possessing cannabis for sale contrary to s 32(1)(e). The particulars alleged that the appellant was in possession of the cannabis for the purpose of sale. There was no suggestion that the Director is not permitted to particularise the charge in that way, that is, to allege possession for the purpose of sale rather than possession for the purpose of sale, supply or administration, if the Director so chooses.

7 Section 32(3) of the Act provides:

"(3) For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug or substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person."

It is to be noted that this provision creates a presumption that relates to the purpose of sale or supply, and does not include the purpose of administration to another person.

8 Regulations made under the Act provide that the prescribed amount of cannabis for the purposes of s 32(3) is 100 grams.

9 On 10 August 2001 the police raided a house rented by the appellant. They found a quantity of cannabis in the form of leaf, stem and 6.114 kilograms of female flowering head. The sentencing Judge sentenced the appellant on the basis that the appellant had produced the cannabis. He had grown it hydroponically. When found by the police the flowering head was laid out to dry under lamps. The weight of the flowering head would have been less at the time of sale, after it had been dried, than at the time it was seized by the police.

10 It was common ground that a relatively small amount of the cannabis was intended for gratuitous supply to friends of the appellant on a casual basis.

11 Allowing for the drying out of the flowering head and some gratuitous supply, the quantity of cannabis in the appellant's possession was still well in excess of the prescribed amount of 100 grams necessary to activate the statutory presumption in s 32(3) of the Act. The overall weight of the cannabis - that is, of the leaf, stem and head - was 8.0245 kilograms on 13 August 2001, and approximately 7.5 kilograms on 22 October 2001. The reduction in weight was explained by the escape of moisture from the bags in which the cannabis was stored. The market value of the cannabis was estimated to be between $22,000 and $44,000.

12 In the course of giving evidence, the appellant conceded that the cannabis seized by the police was in his possession at the relevant time. His evidence was that the cannabis was for his own consumption and occasional gratuitous supply to friends, and that his purpose was not to sell it.

13 The sole ground on the appeal against conviction is that the Judge erred in directing the jury that where a person is in possession of more than 100 grams of cannabis, the law presumes that the possession was for the purpose of sale, unless the person proves on the balance of probabilities that the possession was not for the purpose of sale. The issue is whether s 32(3) of the Act gives rise to a presumption of possession for the purpose of sale when the Director proves possession of a prohibited substance, the amount is more than the prescribed amount, and alleges that the possession is for the purpose of sale.

14 Mr Lang, counsel for the appellant, submitted that there was in this case no evidence indicating that the appellant's purpose was sale, and that the Director relied solely on the presumption of possession for sale to prove possession for sale. It is not necessary to form a view on that because the Judge directed the jury that the presumption of possession for the purpose of sale arose, and the jury is likely to have proceeded on that basis.

15 There are two grounds of appeal against sentence. The first ground is that the Judge erred in sentencing the appellant on the basis of an intention to sell the cannabis. This raises the issue already identified.

16 The second ground of appeal against sentence is that the Judge erred in sentencing the appellant on the basis that all of the cannabis involved in the commission of the offence was intended for sale. The complaint is that the evidence that the appellant would have used some of the cannabis for his own consumption and some of it for gratuitous supply to friends should have led the Judge to find that only a portion of the cannabis, if any, was intended for sale.

17 The issue on the appeal against conviction is the effect of the statutory presumption in s 32(3) of the Act.

18 Mr Lang submits that the presumption is expressed as a presumption of possession for the purpose of sale or supply and that s 32(3) does not give rise to a presumption of possession for the purpose of sale alone, or for the purpose of supply alone.

19 He submits that the statutory presumption is available only when the charge is possession for the purpose of sale or supply. Accordingly, it was not available in the present case.

20 On his submission, when s 32(3) can be invoked it creates a presumption that the possession is for the purpose of either sale or supply, without creating a presumption that the possession is for either one of those purposes in particular. That is, s 32(3) creates a presumption that the person in question intends either to sell the substance or to supply the substance, without creating a presumption that either purpose is in fact present. The presumption supports a conviction on that basis only. A person convicted on the basis of the presumption will be convicted on the basis that the person had one or other of the stated purposes, but not necessarily either one of them.

21 If that is correct, and a person is convicted of possession for sale or supply on that basis, the Court would have to sentence the offender on the basis that the purpose was supply, unless there is evidence to satisfy the Court for the purposes of sentencing that the purpose was or included the purpose of sale. I say that because I accept that an offence involving the purpose of sale is, in principle, more serious than an offence involving the purpose of supply. Sale includes a commercial element that is not necessarily present in the case of supply. I emphasise that these remarks are necessarily general. In a particular situation the purpose of supply might be viewed as being equally serious as the purpose of sale. If one accepts that the purpose of sale will generally make the offence more serious than it would be if the purpose was supply only, it would follow that the Court could not sentence a person convicted of possession for sale or supply on the basis that the more serious form of the offence had been committed, unless satisfied by evidence that that finding should be made. And, of course, on Mr Lang's argument the presumption does not enable the Court to say that the more serious form of the offence is made out even as to some part of the drug or substance.

22 It is not clear to me whether Mr Lang accepted that s 32(3) operates to create a presumption that the purpose is for sale or supply as the occasion or opportunity might arise. That is, a presumption that the accused would sell the substance if the occasion and opportunity arose, and would supply the substance if the occasion or opportunity arose. If the presumption operates in that way, a person convicted of possession for sale or supply could be sentenced on the basis that the person did intend to sell when the occasion or opportunity arose, and did as well intend to supply if the occasion or opportunity arose.

23 In support of his submission Mr Lang relied on the terms in which s 32(3) is expressed. I accept that s 32(3) is expressed in terms such that could be read in the manner for which Mr Lang contends. He also relies on the principle of statutory construction that when a statute creates the statutory fiction that can be used to establish an element of a criminal offence, the statute is to be applied with care and to be read narrowly rather than broadly, because Parliament is not to be taken to intend that a person should be convicted of an offence on the basis of a fiction unless it makes that intention clear. I accept that submission as well. That principle was applied in a somewhat similar context in the R v Bilick & Starke (1984) 36 SASR 321 at 328-329 King CJ. Mr Lang relies also on an argument that it is unfair if, by alleging the purpose of sale alone, the Director can invoke a presumption of possession for the purpose of sale, and obtain a conviction for that offence, rather than a conviction for the less serious offence of possession for the purpose of sale or supply. That submission is sound only if Parliament did not intend that result. To some extent the submission assumes the point at issue. However, the point remains that Parliament might not have envisaged that the Director would be able to make that choice, and expose an accused person to a conviction for the more serious form of the offence created by s 32(1)(e) by tailoring the charge appropriately.

24 I consider that the answer to these submissions lies in s 32(1)(e). In R v Hoang [2002] SASC 262 this Court held that s 32(1)(e) creates only one offence, and that a charge of possession for sale or supply was not duplicitous by charging two different offences. Gray J, with whom the other members of the Court agreed, said at [25] and [26];

"Section 32(1)(e) seeks to penalise the act of possession with intent to distribute. The section penalises that act of possession if the possession is for one or more specified purposes. In this circumstance there is only one offence regardless of whether the act of possession is for any or more of the prohibited purposes. Those purposes are sale, or supply or administration. The amended information specified sale or supply. There can be, as section 32(1)(e) recognises, more than one purpose for possession and more than one method of committing the same offence.

Accordingly, Section 32(1)(e) creates only one offence of knowingly being in possession of a drug of dependence or a prohibited substance for the purpose of sale, supply or administration to another. The use of the disjunctive "or" in the section merely specifies the different ways in which the single offence may be committed."

25 That being so, the Director may lay a charge alleging one only of the specified purposes or one only of the specified methods of committing the offence. Thus, the Director may charge possession for the purpose of sale, and in that event to obtain a conviction must prove that particular purpose existed. The Director might charge possession for the purpose of sale and supply. In that event the Director must prove that each of those intentions exists, presumably as to different parts of the total quantity of the substance in question. The Director might charge possession for the purpose of sale or supply, or indeed for the purpose of sale or supply or administration. In such a case what the Director must prove is that the possession in question is for one or other of those purposes, but certainly for one of them. Any potential unfairness that might arise in such a case, because of uncertainty as to the nature of the Director's case, will be met by ordering particulars if appropriate, and by making clear to the jury the precise basis upon which the charge is brought. A case of the latter kind should be the exception. Usually the Director will be expected to select and to specify the purpose that is alleged. These matters were canvassed by Bray CJ in Romeyko v Samuels (1972)2 SASR 529 at 552-553.

26 The presumption created by s 32(3) is evidently intended for use when a charge is laid under s 33(1)(e) and only in such a case. As I have already noted, the statutory presumption is not available when the purpose alleged is or includes the purpose of administration to another person.

27 The issue that this case presents arises because s 32(1)(e) creates only one offence, as this Court held in Hoang. If that provision created three separate offences, namely, the offences of possession for the purpose of sale, possession for the purpose of supply and possession for the purpose for administration, then s 32(3) would have to be read as creating a presumption that could be applied distributively or separately to each of the first two offences. I say that because if s 32(1)(e) created three separate offences, it would not be possible to charge a person with possession for the purpose of sale or supply. To do so would be duplicitous. That was the point at issue in Hoang. That being so, it would make no sense to read the presumption in s 32(3) as applicable only when the charge was possession for the purpose of sale or supply. Accordingly, as I have said, it would be read as creating a presumption that could be invoked on a charge of possession for sale and a presumption that could be invoked on a charge of possession for the purpose of supply.

28 As s 32(1)(e) creates only a single offence, it is possible for a person to be charged with possession for the purpose of sale or supply. That creates the possibility that Parliament intended the presumption created by s 32(3) to be available only in that situation, and not when the charge is possession for the purpose of sale, or when the charge is possession for the purpose of supply, or, perhaps, when the charge is possession for the purpose of sale and supply.

29 The Court is concerned with the meaning to be attributed to s 32(3). But the fact that the approach to that issue is affected by the proper reading of s 32(1)(e), in the manner just mentioned, illustrates that the Court is dealing with fairly fine shades of meaning.

30 In my opinion Mr Lang submission should not be accepted. My reasons for so concluding are as follows.

31 First, s 32(3) can be read in the manner for which the Director contends without any difficulty. I agree that it can be read in the manner for which Mr Lang contends. But my point is that there is no difficulty in reading it the other way.

32 Second, I am influenced by the fact that the charge of possession for the purpose of sale or supply is not the paradigm of the charge to be anticipated under s 32(1)(e). I can not think of any reason why Parliament would have singled out a charge of possession for the purpose of sale or supply to be the situation in which a presumption is available to assist the Director, not making that presumption available in the case of a charge of possession for the purpose of sale or possession for the purpose of supply.

33 Third, the meaning for which the Director contends does not result in an outcome that is surprising, nor is it one that is unfair. As to the latter point, there is not much difference, in terms of seriousness, between a conviction for possession for the purpose of sale as against a conviction for possession for the purpose of supply. "Supply" is defined in s 4 of the Act so as to have a wide meaning. There will be situations in which an act that would, as a matter of law, amount to sale would fall within the definition of "supply." I acknowledge that possession for the purpose of sale is, in principle, a more serious offence than possession for the purpose of supply when the supply is gratuitous. But there will be situations in which the circumstances of the offence will mean the possession for the purpose of supply will be a serious offence, and there can be situations in which possession for the purpose of sale can be regarded as not particularly serious. That is why I conclude that a reading of s 32(3) that enables the Director to invoke the presumption that possession is for the purpose of sale, when the charge is possession for sale, does not produce a result so unfair that one would conclude that Parliament could not have so intended.

34 Finally, no principle of statutory interpretation was identified that points towards a contrary conclusion. I accept that a presumption of this kind, that enables the prosecution to prove an element of an offence whether that element is in fact present or not, is to be construed narrowly and to be applied cautiously. However, when s 32(3) is considered in its statutory context, my view is that it is quite unlikely that Parliament intended it to have the limited operation for which Mr Lang contends, and accordingly the relevant principle does not point to a conclusion contrary to that which I have reached.

35 My conclusion accords with the view expressed by Perry J in Hoang at [5] and [6]. However, I have considered the matter afresh, because, as I understand it, the point now at issue was not in issue in Hoang, and accordingly the observations by Perry J are not binding in this Court.

36 It follows that the statutory presumption was available to assist the Director, and that the Judge's direction to the jury was correct.

37 For those reasons the appeal against conviction fails.

38 The Judge sentenced the appellant on the basis that the cannabis had a substantial value, between about $22,000 and about $44,000, and on the basis that the appellant intended or expected that sooner or later a number of sales would be made. The Judge accepted a submission "that a relatively small part of the cannabis was intended for supply to friends on a casual basis." The Judge indicated that that submission had been accepted by the Director for the purposes of sentence. That disposes of the second ground of appeal against sentence.

39 There is a question of whether a submission to that effect in mitigation was inconsistent with the conviction. The conviction was a conviction for possessing cannabis for the purpose of sale. It might be thought to be inconsistent with the conviction for the appellant then to submit that as to some of the cannabis his intention was that of supply. To so hold would be consistent with the view expressed by the Court of Criminal Appeal of Western Australia in Collins (1993) 67 A Crim R 104. A contrary view appears to have been taken by Perry J in R v Dunlop [2002] SASC 383, although as I understand his Honour's reasons the matter was not argued. Nor was it fully argued before us. Counsel for the Director did not suggest that the Judge had erred in the present case.

40 In the circumstances, I prefer to express no view on this point. I will proceed on the basis that the Judge is correct.

41 In support of the appeal against sentence Mr Lang argued, as I understand him, that the Judge was not entitled to sentence the appellant on the basis that all or most of the cannabis was possessed for the purpose of sale. His submission appears to have been that for the purposes of sentence it was necessary for the Director to establish that the appellant's purpose was sale, because such a purpose is a circumstance of aggravation and, in accordance with established principle, must therefore be established by the prosecution.

42 I reject that submission. The jury's verdict reflects a finding, no doubt aided by the presumption in s 32(3), that the appellant was in possession of the cannabis for the purpose of sale. The Judge was entitled and obliged to sentence on that basis. The Judge was not in error in doing so.

43 I accept that if the Director had asked the Judge to take into account matters other than the value of the cannabis and the fact that the appellant's purpose was that of sale, then to the extent that those further matters were aggravating circumstances and were in issue, it would have been necessary for the prosecution to establish them for the purposes of sentence. However, the purpose of sale was, as such, an element of the offence charged, and is established by the verdict of guilty.

44 In the light of those matters, it cannot be said that the sentence was manifestly excessive. The appellant faced a maximum penalty of a fine not exceeding $50,000 or imprisonment for ten years or both. The offence is a prevalent one. It is an offence that calls for a sentence that contains a substantial element of general deterrence. The Judge referred to all relevant matters in his sentencing remarks. There is no indication varying that respect. The sentence imposed is a moderate one. It cannot be said that the Judge erred in failing to suspend the sentence. Once again, there were factors by reference to which the Judge might have decided to do so, but it can't be said that he was obliged to do so.

45 In the course of submissions the Solicitor General touched on the question of the maximum sentence applicable to the offence. The effect of s 32(5)B(a)(ii) is that the maximum penalty is that stated above, if "the quantity of cannabis involved in the commission of the offence" was less than 10 kg but more than 2 kg. The Solicitor General touched on the question of whether the maximum sentence stated by me is applicable only if it is proved that the accused is in possession of more than 2 kg for the purpose of sale. He referred to the arguments that might arise if the amount possessed was slightly in excess of 2 kg, and the convicted person satisfied the Court (if entitled to do so despite the conviction) that some of the cannabis was possessed for the purpose of personal use, and that after that amount was subtracted the amount remaining was less than 2 kg. In the present case it is not necessary to consider this submission. Under the circumstances, there can be no doubt that the appellant was in possession of more than 2 kg for the purposes of sale. My tentative view is that, in any event, the applicable penalty is determined by reference to the quantity of cannabis involved, the quantity in the possession of the accused, and that it is not relevant for these purposes to subtract notionally whatever quantity of cannabis might have been possessed for a purpose other than the purpose established by the conviction. However, it is not necessary to decide this point here.

47 For those reasons I would dismiss the appeal against conviction and I would dismiss the appeal against sentence.

48 PERRY J. I agree with the reasons published by the Chief Justice and that the appeals against conviction and sentence should be dismissed.

49 NYLAND J: I agree that the appeals against conviction and sentence should be dismissed for the reasons expressed by the Chief Justice.

R v ROWAN No. SCCRM-02-371, SCCRM-02-372 [2003] SASC 138

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Judgment (53 paragraphs)

R v ROWAN No. SCCRM-02-371, SCCRM-02-372 [2003] SASC 138 (20 May 2003)

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