Court of Appeal (WA)|2008-06-20|Before: Buss JA, Steytler P, Miller JA

ZUCCALA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 129 (20 June 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ZUCCALA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 129

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Drug offences - Declaration that a person is a 'drug trafficker' pursuant to s 32A(1)(b)(i) of the Misuse of Drugs Act 1981 - Where accused has been convicted of possession of a quantity of a prohibited drug with intent to sell or supply - Where accused was in possession of a quantity of the prohibited drug in excess of the quantity specified in Sch VII - Where accused asserts that the drug was partly for personal use and the quantity not for his personal use is less than the quantity specified in Sch VII - Whether the quantity of the prohibited drug the subject of a 'serious drug offence' means the total quantity in the possession of the accused or whether it is only the quantity the accused intended to sell or supply - Declaration to be made pursuant to s 32A(1)(b)(i) once it is established that the accused was in possession of at least the quantity of the prohibited drug specified in Sch VII

Misuse of Drugs Act 1981 (WA) s 6, s 7, s 32A, s 33, Sch V, Sch VI, Sch VII, Sch VIII

2 BUSS JA: These appeals were heard together. They concern a common issue of construction which arises under the Misuse of Drugs Act 1981 (WA) (the Act).

3 In these reasons, I will refer to the appeal in CACR 93 of 2007 as Mr Zuccala's appeal against the State, and the appeal in CACR 133 of 2007 as the State's appeal against Mr Laing.

4 The issue is whether s 32A(1)(b)(i) of the Act requires proof that a person has been 'convicted of a serious drug offence in respect of' the quantity of the prohibited drug or the number of the prohibited plant that was in his or her possession, or whether it requires proof that the person has been 'convicted of a serious drug offence in respect of' the quantity of the prohibited drug or the number of the prohibited plant he or she intended to sell or supply, in circumstances where the relevant 'serious drug offence' is a crime under s 6(1)(a) or s 7(1)(a) of the Act.

5 This issue has been considered by judges of the District Court. The decisions are in conflict. See The State of Western Australia v Marshall [2007] WADC 26 [27], where Judge Sleight refers to the relevant cases.

Mr Zuccala's appeal against the State: overview of the facts

6 On 16 June 2004, police conducted a search of Mr Zuccala's home in Thornlie.

7 In a shed at Mr Zuccala's home, the police discovered 13 hydroponically grown cannabis plants, 13.2 grams of cannabis in an ice-cream container deposited in a refrigerator, two smoking implements and $1,000 in $50 notes.

8 In an esky located in the boot of Mr Zuccala's car, the police found a further 3.38 kilograms of cannabis in shopping bags or loose in the bottom of the esky. One shopping bag was almost 'pure head' and two others contained 'mostly head with a bit of leaf all still attached'. The remaining cannabis in the esky was 'a mixture of leaf head and some stem'. 'Head' is the colloquial name for the flowering bud of the cannabis plant. It contains the highest concentrations of the active constituent drug, tetrahydrocannabinols.

9 Mr Zuccala was charged on indictment with two counts. The first alleged possession of cannabis with intent to sell or supply it to another, in contravention of s 6(1)(a) of the Act. The second alleged cultivation of cannabis with intent to sell or supply it to another, in contravention of s 7(1)(a).

10 Mr Zuccala was tried in the District Court before Judge Healy and a jury. The only issue at trial was whether Mr Zuccala had an intention to sell or supply. He claimed at the trial that he used cannabis to relieve pain he suffered as a result of an accident (ts 72), he intended to discard the leaf and stem (ts 73 - 74) and he never sold or gave away any cannabis (ts 76). A drug expert gave uncontradicted evidence that a normal user of cannabis may consume up to 10 grams per week and that a chronic user may consume up to 28 grams per week (ts 54).

11 On 16 August 2005, Mr Zuccala was convicted on both counts. Healy DCJ sentenced him to a suspended term of imprisonment on each count. On count 1, Mr Zuccala received 30 months' imprisonment suspended for 2 years, and on count 2 he received 24 months' imprisonment (concurrently with the other term) suspended for 2 years.

12 As a result of Mr Zuccala's convictions, Healy DCJ declared him to be a drug trafficker pursuant to s 32A(1)(b)(i) of the Act. Mr Zuccala's counsel at the hearing before his Honour did not make any submissions in opposition to the making of the declaration.

13 Mr Zuccala applies to this court for an extension of time within which to appeal against the making of the drug trafficker declaration, on the grounds that:

(a) Healy DCJ should have quantified, as a matter of fact, what part of the cannabis in Mr Zuccala's possession was intended to be sold or supplied and what part of that cannabis was for his own use; and

(b) His Honour, in finding the material facts, should have found that Mr Zuccala intended to sell or supply less than 3 kilograms of cannabis and, therefore, should not have made the drug trafficker declaration.

14 Before this court, it was common ground that Mr Zuccala intended to make personal use of some of the cannabis found in his possession on 16 June 2004.

Mr Zuccala's appeal against the State: Healy DCJ's findings of fact in the course of sentencing

15 During the sentencing process, Healy DCJ made some findings of fact. On sentencing, the State must prove aggravating factors beyond reasonable doubt, but the person convicted may prove mitigating factors on the balance of probabilities. See R v Olbrich [1999] HCA 54; (1999) 199 CLR 270.

16 Mr Zuccala's counsel did not make any submission to Healy DCJ as to the precise quantity of cannabis that was for his personal use and the precise quantity that was for sale or supply. There was no evidence at trial as to what portion of the cannabis Mr Zuccala intended to discard, except for his statements that he was going to clean off the leaf and get rid of the 'rubbish' by burying it (ts 74), and that he would be left with a kilogram of cannabis (ts 73). On behalf of Mr Zuccala, counsel submitted to his Honour that:

(a) 'some of the drug was meant for [Mr Zuccala]. Now, as to how much is a matter entirely for your Honour to decide' (ts 116); and

(b) '[Mr Zuccala] certainly had the intention to use some, if not the bulk of that for himself' (ts 116).

17 Healy DCJ held that the following facts had been proven:

(a) cannabis was found in an ice-cream container in a refrigerator (ts 127);

(b) 13 cannabis plants were found growing in a tray in a cupboard (ts 127);

(c) 3.38 kilograms of cannabis, being mixed head and leaf, with some leaf material (being leaf on stems), was found in the boot of Mr Zuccala's car (ts 127);

(d) Mr Zuccala used cannabis to relieve his pain (ts 129); and

(e) Mr Zuccala had enough cannabis to last a long time without growing another crop (ts 129).

His Honour accepted the evidence of the drug expert to the effect that the cannabis leaf had some value and, by implication, his Honour doubted the accuracy of Mr Zuccala's stated intention to discard all of the leaf material (ts 129).

18 Healy DCJ declined, for sentencing purposes, to decide how much cannabis was for Mr Zuccala's own use and how much was for sale or supply (ts 129). His Honour merely found that 'there was simply too much for you to use all yourself' and that Mr Zuccala was going to give away some of the cannabis or sell some to boost his meagre funds (ts 130).

Mr Zuccala's appeal against the State: application for an extension of time to appeal

19 Healy DCJ made the drug trafficker declaration on 16 August 2005. Mr Zuccala's appeal should have been commenced by 6 September 2005. He did not file his appeal notice until 8 August 2007.

20 Mr Zuccala's application for an extension of time to appeal was supported by an affidavit sworn by him on 8 August 2007. Mr Zuccala's explanation for the significant delay is that he did not appreciate the consequences of the making of the drug trafficker declaration until after the Director of Public Prosecutions commenced confiscation proceedings against him under the Criminal Property Confiscation Act 2000 (WA). His affidavit annexes a letter dated 13 April 2007 from the Office of the Director of Public Prosecutions which informed him, relevantly, that by virtue of the drug trafficker declaration, on 16 August 2005 all property owned or effectively controlled by him at that date, and all property that he gave away at any time before that date, was confiscated to the State. In paras 20 - 24 of his affidavit, Mr Zuccala deposes:

At the time I was declared a drug trafficker, I owned a significant amount of property, including 50% interests in 39 Redheart Drive, Thornlie, 7 Thornhill Road, Huntingdale and 23 Kenwick Road, Kenwick.
None of my property, nor any part of my property, was acquired by selling drugs or from the proceeds of crime.
If I had known the consequences of being declared a drug trafficker was that all the property I owned or effectively controlled or at any time had given away was confiscated, I would have sought legal advice as soon as the declaration was made as to whether I could appeal against the declaration, and generally.
On 19 June 2007, Michael Tudori [a solicitor] advised me that I should appeal the Drug Trafficker Declaration. As such I advised him to brief Ms Linda Black, Barrister to commence the proceedings and file the Notice of Appeal.

21 The State opposes Mr Zuccala's application for an extension of time to appeal, but counsel for the State accepted, properly, that if the construction of s 32A(1)(b)(i) of the Act advanced on behalf of Mr Zuccala was correct, it would follow that there had been a miscarriage of justice before Healy DCJ, and an extension of time should be granted.

Mr Zuccala's appeal against the State: ground of appeal

22 Mr Zuccala's sole ground of appeal, with supporting particulars, reads:

The Learned Judge erred in ordering that the Appellant was a Drug Trafficker pursuant to section 32A of the Misuse of Drugs Act 1981 (MDA).

Particulars

The Learned Judge declared the Appellant to be a Drug Trafficker based upon the fact that the quantity of drugs in his possession was 3.38 kg, such amount being greater than the quantity specified in Schedule VII of the MDA.
A Declaration, however, should only be made in these circumstances if an accused is convicted of, inter alia, an offence of possession of [sic] sale or supply of cannabis where the quantity constituting that conviction, as opposed to the quantity in the Appellant's possession, is more than 3 kg.
It was accepted both by the State and the Learned Judge that some of the cannabis was to be used by the Appellant for his personal use.
It was further open for the Learned Judge to find that a portion of the cannabis was unuseable or 'rubbish'.
Accordingly, the Learned Judge erred in making the declaration in circumstances where the evidence revealed that the quantity of cannabis relevant to the offence of possession of cannabis with intent to sell [or] supply was in fact less than the amount specified in Schedule VII of the MDA.

On 4 October 2007, Wheeler JA ordered that the application for an extension of time, and the application for leave to appeal, be heard together with the appeal.

The State's appeal against Mr Laing: overview of the facts

23 On 16 March 2006, police executed a search warrant at Mr Laing's home. The police seized a quantity of 3,4-methylenedioxy-N, A-Dimethylphenylethylamine (MDMA) and numerous drug-related items.

24 The total weight of the MDMA was 34.98 grams. The drug comprised 100 tablets found on Mr Laing's bed (21.8 grams) and 60 tablets found hidden in his lounge chair (13.18 grams).

25 On 16 March 2006, Mr Laing admitted to the police that he intended to sell the 100 MDMA tablets (21.8 grams) found on his bed. As to the 60 MDMA tablets (13.18 grams) found hidden in his lounge chair, Mr Laing told the police that he intended to use some of those tablets himself and to sell or supply the balance to his friends.

26 On 7 March 2007, Mr Laing appeared in the District Court before Judge Goetze and pleaded guilty to one count of possession of MDMA with intent to sell or supply it to another, in contravention of s 6(1)(a) of the Act. On that date, the Director of Public Prosecutions made application pursuant to s 32A(1)(b)(i) of the Act for a declaration that Mr Laing was a drug trafficker. Sentencing was then adjourned so that a trial of several issues relevant to the factual basis of sentencing could be arranged. The Director's application was also adjourned.

27 On 27 September 2007, the trial of the issues, for sentencing purposes, occurred before Goetze DCJ. The principal issue was to determine the proportion of the total amount of MDMA which Mr Laing intended to sell or supply, it having been submitted on his behalf in mitigation that he did not intend to sell or supply all of the 34.98 grams seized by the police. The State did not accept that submission and, in consequence, Mr Laing was obliged to establish the asserted fact, for sentencing purposes, by admissible evidence and on the balance of probabilities. On 28 September 2007, Goetze DCJ made a finding of fact that Mr Laing intended to sell or supply an amount of MDMA that was less than the amount prescribed for MDMA in Sch VII of the Act (namely, 28.0 grams).

28 As to the Director's application that Mr Laing be declared a drug trafficker, Goetze DCJ held that s 32A(1)(b)(i) of the Act required the Director to prove that the relevant quantity of the prohibited drug, for the purposes of that provision, was the quantity which Mr Laing intended to sell or supply. His Honour therefore refused to make an order declaring Mr Laing to be a drug trafficker.

The State's appeal against Mr Laing: ground of appeal

29 The State's sole ground of appeal against Mr Laing, including supporting particulars, reads:

The learned sentencing Judge erred in refusing to declare Jason Robert Laing to be a drug trafficker pursuant to section 32A(1)(b) of the Misuse of Drugs Act 1981.

Particulars

The learned sentencing Judge erred in concluding that, in the context of an application made pursuant to section 32A(1)(b) of the Misuse of Drugs Act 1981, in relation to a person convicted of an offence against section 6(1)(a) of the Misuse of Drugs Act 1981, the 'quantity' of the relevant prohibited drug for the purposes of section 32A(1)(b)(i) of the Misuse of Drugs Act 1981 was the quantity that the Respondent intended to sell or supply to another.

On 27 December 2007, Wheeler JA granted the State leave to appeal.

Section 32A of the Act and its history

30 Section 32A was inserted into the Act by s 4 of the Misuse of Drugs Amendment Act 1990 (WA). In Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549 [45] - [58], Roberts-Smith J considered part of the legislative history of s 32A. It is unnecessary to reproduce his Honour's discussion. I should note, however, that since Perejmibida was decided, s 32A has been amended by s 58 of the Criminal Code Amendment Act 2004 (WA), s 7 of the Misuse of Drugs Amendment Act 2004 (WA) and s 4 of the Misuse of Drugs Amendment Act 2006 (WA). For present purposes, none of those amendments is material. They did not affect, relevantly, the proper construction of s 32A(1)(b)(i) or the issue for determination in these appeals.

If a person is convicted of -

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more -

(i) serious drug offences;

(ii) external serious drug offences; or

(iii) offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;

or

(b) a serious drug offence in respect of -

(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug; or

(ii) prohibited plants in a number which is not less than the number specified in Schedule VIII in relation to the particular species or genus to which those prohibited plants belong,

the court convicting the person of the serious drug offence first referred to in paragraph (a), or the serious drug offence referred to in paragraph (b), as the case requires, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.

By s 32A(2), an application for a declaration under s 32A(1) may be made at the time of the conviction giving rise to that application or at any time within 6 months from the day of that conviction, and more than one such application may be made in respect of that conviction. Section 32A(3) defines, for the purposes of s 32A, the expressions 'external serious drug offence' and 'serious drug offence'. For present purposes, it is necessary to refer only to 'serious drug offence', which is defined to mean a crime under s 6(1), 7(1), 33(1)(a) or 33(2)(a).

Subject to subsection (3), a person who -

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

(b) manufactures or prepares; or

(c) sells or supplies, or offers to sell or supply, to another,

a prohibited drug commits a crime ...

Subject to subsection (3), a person who -

(a) with intent to sell or supply a prohibited plant or any prohibited drug obtainable therefrom to another, has in his possession or cultivates the prohibited plant; or

(b) sells or supplies, or offers to sell or supply, a prohibited plant to another,

commits a crime ...

For the purposes of -

(a) section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug; or

(b) section 7(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession, or to cultivate, prohibited plants of a particular species or genus with intent to sell or supply those prohibited plants or any prohibited drug obtainable therefrom to another if he has in his possession, or cultivates, a number of those prohibited plants which is not less than the number specified in Schedule VI in relation to that species or genus.

35 Schedule V, referred to in s 11(a), specifies the amounts of particular prohibited drugs giving rise to the presumption, under s 11(a), of an intention to sell or supply. It lists 144 prohibited drugs. They include, relevantly, cannabis in an amount of 100.0 grams and MDMA in an amount of 2.0 grams.

36 Schedule VI, referred to in s 11(b), specifies the numbers of particular prohibited plants giving rise to the presumption, under s 11(b), of an intention to sell or supply those plants or prohibited drugs obtainable from them. It lists three prohibited plants. They include cannabis, and the relevant number is 10 plants.

37 Schedule VII, referred to in s 32A(1)(b)(i), specifies the amounts of particular prohibited drugs for the purposes of drug trafficking within that provision. It lists 12 drugs. They include cannabis in an amount of 3.0 kilograms and MDMA in an amount of 28.0 grams.

38 Schedule VIII, referred to in s 32A(1)(b)(ii), specifies the number of particular prohibited plants for the purposes of drug trafficking within that provision. It lists one plant. The plant is cannabis, and the relevant number is 250 plants.

The elements of the crime under s 6(1) of the Act

39 Section 6(1) provides, in essence, for three different means by which the crime it creates may be committed. First, a person who has in his possession a prohibited drug with intent to sell or supply it to another commits a crime. The elements of the crime comprise possession of the prohibited drug with the requisite intention. Secondly, a person who manufactures or prepares a prohibited drug commits a crime. The sole element of the crime is manufacture or preparation of the prohibited drug. Neither possession nor an intent to sell or supply is necessary. Thirdly, a person who sells or supplies, or offers to sell or supply, a prohibited drug to another commits a crime. The sole element of the crime comprises a sale or supply, or an offer to sell or supply, the prohibited drug. Possession is not necessary. In summary, possession is an element of the crime under s 6(1)(a), but not under s 6(1)(b) or s 6(1)(c).

40 The crime created by s 6(1) may be compared to and contrasted with the simple offence created by s 6(2).

41 Section 6(2) provides, in essence, that a person who has in his possession or uses a prohibited drug commits a simple offence. The sole element of the simple offence comprises possession or use of the prohibited drug.

42 A person who merely has possession of a prohibited drug commits a simple offence under s 6(2), but not a crime under s 6(1)(a) unless the possession is accompanied by an intent to sell or supply at least some of it to another.

The elements of the crime under s 7(1) of the Act

43 Section 7(1) provides, in essence, for two different means by which the crime it creates may be committed. First, a person who has in his possession or cultivates a prohibited plant with intent to sell or supply the prohibited plant or any prohibited drug obtainable from it to another commits a crime. The elements of the crime comprise possession or cultivation of the prohibited plant with the requisite intention. Secondly, a person who sells or supplies, or offers to sell or supply, a prohibited plant to another commits a crime. The sole element of the crime comprises a sale or supply, or an offer to sell or supply, the prohibited plant. Possession or cultivation is not necessary. In summary, possession or cultivation is an element of the crime under s 7(1)(a), but not under s 7(1)(b).

44 Like s 6(1) and (2), the crime created by s 7(1) may be compared to and contrasted with the simple offence created by s 7(2).

45 Section 7(2) provides, in essence, that a person who has in his possession or cultivates a prohibited plant commits a simple offence. The sole element of the simple offence comprises possession or cultivation of the prohibited plant.

46 A person who merely has possession of a prohibited plant commits a simple offence under s 7(2), but not a crime under s 7(1)(a) unless the possession is accompanied by an intent to sell or supply the prohibited plant or at least some of any prohibited drug obtainable from it to another.

47 By s 33(1), a person who attempts to commit an offence (the 'principal offence') commits:

(a) if the principal offence is a crime, the crime; or

(b) if the principal offence is a simple offence, the simple offence,

and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

48 By s 33(2), a person who conspires with another to commit an offence (the 'principal offence') commits:

(a) if the principal offence is a crime under s 6(1) or 7(1), the crime, but is liable on conviction to the penalty referred to in s 34(1)(b); or

(b) if the principal offence is a simple offence or a crime, other than a crime referred to in par (a), the simple offence or that crime, as the case requires, and is liable on conviction to the same penalty to which a person who commits the principal offence is liable.

The proper construction of s 32A(1)(b)(i) of the Act

49 Section 32A(1)(b)(i) cannot, of course, be construed in isolation. It must be construed in the context of the Act as a whole. The other provisions of s 32A(1) are of particular importance in discerning Parliament's intention in relation to the issue for determination in these appeals.

50 It is instructive to compare and contrast s 32A(1)(a)(i) with s 32A(1)(b)(i).

51 Section 32A(1)(a)(i) requires proof that a person has been convicted of:

(a) a 'serious drug offence' (that is, a crime under s 6(1), 7(1), 33(1)(a) or 33(2)(a)); and

(b) during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence referred to in par (a) was committed, two or more 'serious drug offences'.

52 For the purposes of s 32A(1)(a)(i), the quantity of the prohibited drug or the number of the prohibited plants the subject of each of the requisite three or more serious drug offences within the 10-year period is irrelevant. Any quantity or number will suffice.

53 The scheme of s 32A(1)(a)(i) (in particular, the absence of any specification of a minimum quantity of prohibited drugs or a minimum number of prohibited plants) is consistent with the elements of the crimes created by ss 6(1), 7(1), 33(1)(a) and 33(2)(a). See [39] - [48] above. For example, s 6(1) is concerned with:

(a) the intended sale or supply of prohibited drugs in a person's possession; or

(b) the actual manufacture or preparation of prohibited drugs; or

Section 6(1) is not concerned with mere possession or use, which is the subject of the simple offence created by s 6(2). Further, ss 6(1), 7(1), 33(1)(a) and 33(2)(a) do not specify or require, as an element of the crime, a particular quantity of a prohibited drug or a particular number of a prohibited plant. Any quantity or number will suffice.

54 Section 32A(1)(b)(i) requires proof that a person has been convicted of a 'serious drug offence' (that is, a crime under s 6(1), 7(1), 33(1)(a) or 33(2)(a)) 'in respect of a prohibited drug in a quantity which is not less than the quantity specified in Sch VII in relation to the prohibited drug'.

55 On an application made pursuant to s 32A(1)(b)(i), the court is required to make findings of fact, as follows:

(a) whether the respondent to the application has been convicted of a 'serious drug offence'; and

(b) if so, whether the 'serious drug offence' is 'in respect of a prohibited drug in a quantity which is not less than the quantity specified in Sch VII in relation to the prohibited drug'.

If the court makes findings of fact against the respondent in relation to those matters, then the court must make a drug trafficker declaration. See R v Rowe (1991) 5 WAR 491.

56 Section 32A(1)(b)(i) is to be distinguished from s 32A(1)(a)(i) in that s 32A(1)(b)(i) requires only one conviction for a serious drug offence, whereas s 32A(1)(a)(i) requires three or more such convictions during a 10-year period.

57 Further, s 32A(1)(b)(i) is to be distinguished from ss 6(1), 7(1), 33(1)(a) and 33(2)(a), and also from s 32A(1)(a)(i), in that s 32A(1)(b)(i) specifies a minimum quantity of the relevant prohibited drug. Also see s 32A(1)(b)(ii), which specifies a minimum number of the relevant prohibited plant.

58 The intention of the Parliament is that a person should be declared to be a drug trafficker if he or she commits:

(a) three or more serious drug offences within a 10-year period, irrespective of the quantity of the relevant prohibited drugs or the number of the relevant prohibited plants (as the case may be); or

(b) one serious drug offence at any time, if the quantity of the prohibited drug exceeds the quantity specified in Sch VII in relation to that drug or the number of prohibited plants exceeds the number specified in Sch VIII in relation to that plant.

59 As I have mentioned, the number of different kinds of prohibited drugs and the number of different kinds of prohibited plants specified in Schs VII and VIII (12 and one respectively) are significantly less than the number of different kinds of prohibited drugs and the number of different kinds of prohibited plants specified in Schs V and VI (144 and 3 respectively) for the purposes of the presumption of intent to sell or supply contained in s 11. Also, as I have mentioned, the quantities of prohibited drugs and the numbers of prohibited plants specified in Schs VII and VIII for the purposes of the drug trafficker provisions in s 32A(1)(b) are significantly greater than the quantities and numbers specified in Schs V and VI for the purposes of the presumption of intent to sell or supply contained in s 11.

60 Accordingly, where the 'serious drug offence' is a crime under s 6(1)(a), proof of a conviction, for the purposes of s 32A(1)(b)(i), constitutes proof only that:

Proof that the offender has been convicted of a crime under s 6(1)(a) does not establish the quantity of the prohibited drug that was in the offender's possession or the quantity of the prohibited drug which the offender intended to sell or supply. See Marker v The Queen [2002] WASCA 282; (2002) 135 A Crim R 55.

61 Further, proof of the fact of a conviction for a crime under s 6(1)(a) does not establish, for the purposes of s 32A(1)(b)(i), that the 'serious drug offence' in question was 'in respect of' any particular quantity of the prohibited drug.

62 The 'quantity' of the prohibited drug, for the purposes of s 32A(1)(b)(i), must be proved by evidence which establishes that fact in relation to the conviction for the 'serious drug offence' in question.

63 The purpose or object underlying s 32A(1)(b) is apparent from an examination of that provision in the context of s 8 of the Criminal Property Confiscation Act. Section 8 operates to confiscate a person's property upon a drug trafficker declaration being made in relation to him or her under s 32A. The legislative scheme seeks to deter persons from repeatedly engaging in the sale or supply of certain prohibited drugs or plants and from engaging in the sale or supply of significant amounts of certain prohibited drugs or plants. The Parliament has decided to impose a severe deterrent by automatically confiscating a person's assets upon a drug trafficking declaration being made, irrespective of whether all or any of those assets were acquired from the proceeds of the sale or supply of prohibited drugs or plants. The quantitative thresholds specified in s 32A(1)(b), read with Schs VII and VIII of the Act, fix the quantities of drugs or plants in respect of which a person will be presumed to be a drug trafficker of sufficient seriousness to justify the confiscation of his or her assets pursuant to s 8 of the Criminal Property Confiscation Act.

64 In my opinion, the plain and ordinary meaning to be discerned from the language of s 32A(1)(b)(i), in the context of the Act as a whole and the purpose or object underlying the provision, is that if a person has been convicted of a crime under s 6(1)(a), the 'serious drug offence' will be 'in respect of a prohibited drug in a quantity which is not less than the quantity specified in Sch VII in relation to the prohibited drug' if the quantity in the person's possession is not less than the relevant quantity specified in Sch VII. The words 'in respect of a prohibited drug in a quantity which is not less than the quantity specified in Sch VII in relation to the prohibited drug' do not refer to the quantity of the prohibited drug which the person intended to sell or supply.

65 My observations in relation to s 6(1)(a), in the context of s 32A(1)(b)(i), apply, with necessary modifications, to s 7(1)(a), in the context of s 32A(1)(b)(ii). The only necessary modifications are those concerning the different elements and subject matter of the crimes created by s 6(1)(a) and s 7(1)(a).

66 Section 19(1) of the Interpretation Act 1984 (WA) permits a court to refer to extrinsic material, in the interpretation of a provision of a written law, if the material is capable of assisting in ascertaining the meaning of the provision, in order to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or unreasonable. By s 19(2), the extrinsic material that may be considered in accordance with s 19(1) includes, relevantly:

(f) the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House;

...

(h) any relevant material in any official record of proceedings in either House of Parliament.

67 When s 31A was introduced in 1990 by the Misuse of Drugs Amendment Act 1990, the Minister for Community Services, the Hon Mr D L Smith, in his Second Reading Speech, said:

A person will be declared to be a drug trafficker in two situations. Firstly, where a person is convicted of an offence involving the supply of drugs and at the time when that offence was committed the person had already been, in the preceding 10 years, convicted of two similar offences. Secondly, where a person is convicted of an offence involving the supply of a prescribed quantity of drugs the prescribed quantity of drugs would usually be of a street value of approximately $15 000. That amount is an indication that large scale drug activities are being carried out from which substantial profits would be derived.

(See Western Australia, Parliamentary Debates, Legislative Assembly, 22 November 1990, 7653.)

68 A little later, in Committee, Mr Smith made these remarks:

I refer members to section 32A(b) [sic] of the Act which refers to a single conviction involving the actual possession of a certain amount of prohibited drugs. It has always been the position in the prosecution of people for drug offences that it be dealt with in two tiers. One is the possession of a drug for personal use and the other is the possession of drugs for the purposes of sale. Traditionally we have worked on the basis that if a person has possession of a quantity of drugs which he can reasonably use for his own benefit over a period, he is charged only with possession and not being in possession of drugs for the purposes of sale. If he is in possession of a larger quantity, by virtue of the quantity it is presumed he cannot use it himself and it is then presumed he has possession of it for the purposes of sale. In this Bill we are taking that one step further by saying that if it is such a quantity as would infer that it is not just held for the purposes of sale, but that it is such a large quantity that a person must not only be presumed to be a dealer for the purposes of sale, but he must also be presumed to be at the top end of the funnel where the drug is gathered and distributed to the dealers and others involved in the selling chain. We want to call those people drug traffickers by virtue of the quantity of drugs they have.

Schedule VII of the Bill states that if the acquired amount is three kilograms of cannabis a person cannot in any way argue that it is required for personal use. It is of a quantity which implies that he is one of the principals supplying the lesser dealers. ...

Professionals have been involved deciding at what level there is a presumption that the person must be involved in breaking down the size of the parcel and selling or distributing it in smaller amounts to lesser dealers. Those professionals have said that when a person is in possession of a quantity of the amounts stated in the schedules it can safely be presumed that they are at the top of the chain and not at the bottom of it. For that reason even if a person is convicted once only, he would be presumed under those circumstances to be a drug trafficker and be subject not only to the penalties imposed for possession of large quantities of drugs for the purposes of sale, but also be subject to the confiscation of assets which flow from being defined as a drug trafficker in this legislation.

I agree that in the end it becomes a question of judgment. People better qualified than I am to make a judgment about those amounts have made them and they are contained in Schedules VII and VIII. Schedule VIII deals with the number of plants as distinct from the weight of cannabis and it is measured at 250 plants. If a person has possession of that number of plants he is presumed to be a drug trafficker and not a dealer in the ordinary course of events. I commend the Bill to the House. (emphasis added)

(See Western Australia, Parliamentary Debates, Legislative Assembly, 27 November 1990, 7819.)

69 My construction of s 31A(1)(b)(i) is based upon the ordinary meaning conveyed by the text of the provision in the context of the Act as a whole and the purpose or object underlying the provision. Although the construction which I prefer does not depend on any extrinsic material, I have considered the extrinsic material to which I have referred for the confirmatory purpose permitted by s 19(1)(a) of the Interpretation Act. The Minister's observations confirm my construction of s 31A(1)(b)(i) based upon the ordinary meaning conveyed by the text.

70 Section 32A(1)(b)(i) of the Act requires proof that a person has been 'convicted of a serious drug offence in respect of' the quantity of the prohibited drug or the number of the prohibited plant that was in his or her possession or that he or she cultivated, in circumstances where the relevant 'serious drug offence' is a crime under s 6(1)(a) or s 7(1)(a) of the Act. It does not require proof that the person has been 'convicted of a serious drug offence in respect of' the quantity of the prohibited drug or the number of the prohibited plant he or she intended to sell or supply.

71 It follows that Mr Zuccala's application for an extension of time to appeal in relation to the decision of Healy DCJ should be dismissed, and the State's appeal against Mr Laing in relation to the decision of Goetze DCJ should be allowed.

Property Confiscation Act 2000

Drugs Amendment Act 1990

Drugs Amendment Act 2004

Drugs Amendment Act 2006

ZUCCALA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 129 (20 June 2008)

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Judgment (133 paragraphs)

ZUCCALA -v- THE STATE OF WESTERN AUSTRALIA [2008] WASCA 129 (20 June 2008)

Legislation Cited (5)

Cases Cited (2)