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Supreme Court of South Australia - Full Court |
Last Updated: 26 November 2010
SUPREME COURT OF SOUTH
AUSTRALIA
(Court of Criminal Appeal)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
Judgment of The Court of
Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice
Gray and The Honourable Justice Kelly)
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
Appeal against conviction and sentence - defendant pleaded guilty to possessing a controlled drug for supply, contrary to section 33I(1)(b) of the Controlled Substances Act 1984 (SA) - where defendant found in possession of 18 ecstasy tablets - where agreed factual basis was that defendant had purchased nine of those tablets from another, but had possession of all 18 with an intention to return the remaining nine to that individual - where agreed that other than returning the nine tablets, the defendant did not intend to further sell or supply the tablets - whether intended return of the drug to its "owner" amounted to the offence of possessing a controlled drug for supply - meaning of "supply".
Held: appeal against conviction dismissed.
(Duggan J): the word "supply" must bear its ordinary meaning - where drugs are transferred into the possession of a person for safekeeping, the mere return of the drugs to the transferor would not constitute supply - however in the present case there was a pooling of all 18 ecstasy tablets and no expectation that the defendant would return nine specific tablets to the other individual - division of the drugs and the transfer of nine of them to the other individual would constitute supply.
(Gray and Kelly JJ): defendant possessed the ecstasy tablets with an intention to supply - no basis for distinction in cases of supply where the intended end user initially provided the substance to the person in possession - the return of the drugs to the "owner" would relevantly constitute supply - policy and purpose of the Controlled Substances Act discussed.
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING MDMA (ECSTASY)
Defendant sentenced to a period of seven months and two weeks imprisonment, reduced from nine months on account of his plea of guilty - sentence suspended on entry by the defendant into a good behaviour bond for two years - whether sentence manifestly excessive.
Held: Appeal dismissed - no error of sentencing principle identified - sentence imposed within the range of appropriate sentences for offending of this nature - open to the Judge to conclude that the offence was too serious for a conviction not to be recorded - reduction made on account of defendant's guilty plea within appropriate range.
Controlled Substances Act 1984 (SA) s 4 and s 33l(1)(b); Misuse of Drugs Act 1971 (UK) s 4 and s 5; Drug Misuse and Trafficking Act 1985 (NSW) s 3 and s 25(1); Acts Interpretation Act 1915 (SA) s 22(1); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11 and s 39, referred to.
Manisco v The Queen (1995) 14 WAR 303; R v Maginnis [1987] UKHL 4; [1987] 1 AC
303; R v Carey (1990) 20 NSWLR 292; R v Pelham (1995) 82 A Crim R
455; Excell v Dellaca (1987) 87 FLR 157; R v Morton (1986) 42 SASR
571; R v Symons (1988) 32 A Crim R 370; Liberti v The Queen (1991)
55 A Crim R 120; Tuckey v The Queen (1991) 57 A Crim R 468; Frazer v
The Queen [2002] NSWCCA 59; (2002) 128 A Crim R 89; R v Pinkstone (2001) 24 WAR 406;
Davies v State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31; R v Buckley
(1979) 69 Cr App R 371; Urbano v The Queen (1983) 9 A Crim R 170; Asim
v The Queen (1997) 92 A Crim R 97; R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R
462; Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202; Pinkstone v The
Queen 
[2004] HCA 23 
; (2004) 219 CLR 444; R v Byrne [1990] NZHC 1052; [1991] 2 NZLR 599; R v
Atkinson [1981] 2 NZLR 663; R v Ward (1938) 38 SR (NSW) 308; R v
Delgado [1984] 1 WLR 89; R v B, MA [2007] SASC 384; (2007) 99 SASR 384; R v
Gibbons (1998) 72 SASR 408; R v Ford [2008] SASC 46; (2008) 100 SASR 94; Darwell v
The Queen (1997) 94 A Crim R 35; R v Becker [2005] SASC 186; (2005) 91 SASR 498; R
v Sladic [2005] SASC 210; (2005) 92 SASR 36; R v Cramp [2010] SASC 51; (2010) 106 SASR 304; R v
Beresford (1972) 2 SASR 446; R v Cronn (1983) 34 SASR 555; R v
Yousef [2005] SASC 203; (2005) 155 A Crim R 134; R v Lambert [2009] SASC 307;
Phillips v Police [2010] SASC 240; Police v Singh [2010] SASC 104;
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"supply"
R v
URBANSKI
[2010] SASCFC 57
Court of Criminal Appeal: Duggan, Gray and Kelly JJ
Provide or distribute or offer to provide or distribute.
The appeal against conviction in the present case involves the application of the concept of “supply” to facts which were not in dispute at the hearing before the District Court.
... whether a person, who has been given a prohibited drug by its ostensible owner for the purpose of its being held for a short time and of its being returned to that owner, is guilty of the offence of having the drug in his possession with an intent to supply it to the owner.
The word “supply,” in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another. No one would ordinarily say that to hand over something to a mere custodier was to supply him with it. The additional concept is that of enabling the recipient to apply the thing handed over to purposes for which he desires or has a duty to apply it.
...
On the assumed facts of the present case (they were never tested before the jury), the defendant had been made custodier of the drugs by his unnamed friend, who, having regard to the quantity of the drugs, may legitimately be inferred to have been a trader. If on a later occasion the defendant had handed the drugs back to his friend, he would have done so in order to enable the friend to apply the drugs for the friend's own purposes. He would accordingly, in my opinion, have supplied the drugs to his friend in contravention of section 4(1). It follows that in so far as he was in possession of the drugs with the intention of handing them back to the friend when asked for by the latter, he was in possession with intent to supply the drugs to another in contravention of section 4(1) and was thus guilty under section 5(3).
... connotes the idea of making goods available to another from resources other than those of the recipient.
He quoted from dictionary definitions which refer to the act of supply as “making up a deficiency” and “supplying something needed”.
I would not describe the delivery by the depositor to the depositee as a supply of goods, because the goods are not being made available to him but are rather being entrusted to him; and I would not describe the redelivery by the depositee to the depositor as a supply of goods, because the goods are simply being returned to him, rather than being made available to him from resources other than his own.
In ordinary language the cloakroom attendant, the left luggage officer, the warehouseman and the shoe mender do not ‘supply’ to their customers the articles which those customers have left with them.
Supply includes sell and distribute and also includes agreeing to supply or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply ...
The word “supply”, however, retains its ordinary meaning as well as the extended meaning for which that inclusive definition provides. The various dictionary meanings of the word are generally agreed as being to furnish or to provide something which is needed or wanted or required by the person to whom it is given. They do not suggest that the use of the word is appropriate when that something is merely returned to its owner or the person reasonably believed to be its owner.
The legislature has, however, gone further. It has also proscribed the “supply” of a prohibited drug. In my view the first reason why the word “supply” is included is to make it unnecessary to prove that there is a price. A form of supply would be a surrender of proprietary rights by delivery. I would not see a re-delivery pursuant to a bailment coming within that category. I would not suggest that the transfer or surrender of proprietary rights would of itself be determinative of whether there was a supply. An owner delivering a product to a defendant so that the defendant is an agent or factor of the owner to arrange its further sale or distribution could well amount to a supply by the owner. The fact that the defendant received the drug for further distribution would mean that he is in possession of it with the necessary intent. However, I do not consider the re-delivery to the owner pursuant to a bailment comes within this category. The legislature has used the word “supply” as distinct from the word “deliver”.
For my own part I agree, with respect, entirely with what has been said by Lord Goff in Maginnis and by the Court of Criminal Appeal in New South Wales in Carey as to the ordinary meaning of the word “supply”. I would not have thought that the word was appropriate to include the mere return of physical control of drugs from a person, with whom they have temporarily been deposited by their owner, to that owner.
Steytler J also referred to the case of Urbano[14] and distinguished it from the facts of the case before the Court. His Honour said:[15]
... it seems to me that the facts in that case are distinguishable from those in this. In Urbano the drugs were left or “dropped” at the house of the appellant by an unknown person so as later to be picked up by the drug dealer “Jeff”. That fact would, no doubt, have influenced the court in reaching the conclusion that the appellant was holding the drugs for the purpose of “supplying” them to Jeff within the ordinary meaning of the word “supply”. That is because the delivery of the drugs to Jeff by the appellant in that case would have been the first “supply” of the drugs to Jeff. That argument would not, of course, be open upon the appellant's version of the facts in this case where, according to him, the drugs were handed to him by the owner (to whom they had, seemingly, already been supplied) with a view to his returning them to the owner at a later date.
Despite what I describe with the greatest respect as the attractive reasoning of Lord Goff, I am, I think, constrained to follow the decision of the House.
... do not suggest that the use of the word is appropriate when that something is merely returned to its owner or the person reasonably believed to be its owner.
I should also refer to one very common situation which that construction should not be understood as including. That is the situation where one person has obtained a quantity of drugs on behalf of another person or on behalf of a group of persons (which may or may not include himself) and where he transfers physical control of those drugs (or some portion of them) to that other person or to those other persons. That is in no sense analogous to the “bailment” situation as is that with which the present appeal is concerned, and in my view such a situation would necessarily fall within the ordinary meaning of the word “supply”.
GRAY J.
Introduction
Background
On 27 September 2008 you went to a large event at the Botanic Gardens. Police officers who were monitoring the entrance noticed yourself and another person behaving suspiciously. They approached you and inquired whether you were carrying any drugs. You produced from the band of your trousers a small plastic bag containing 18 tablets.
You were interviewed and told the police officers that you were going to take the 18 tablets yourself and that you were not going to give them to anybody. You also said that you had no intention to sell them. You said that you purchased them for $20 each. Later, you told the police officers that the tablets were for everybody, that is, your friends, one of whom was a man called Bartosh [sic]who you said would probably take three or four.
Initially you entered a plea of not guilty. Your story changed again and your defence became that only nine of the tablets were yours and the remaining nine belonged to Bartosh [sic] and were to be returned to him. The fact that you changed your story in that way gives one cause to think as to whether anything that you say can be believed.
Your counsel referred me to the cases which supported your argument that you were not in possession of the drugs for supply. She told the court that you changed your plea for health reasons.
The word ‘supply’ is defined in the Act which catches your activity, although I am satisfied that there was a point for argument.
Appeal Against Conviction
Supply
A person who—
(a) supplies or administers a controlled drug (other than cannabis, cannabis resin or cannabis oil) to another person; or
(b) has possession of a controlled drug (other than cannabis, cannabis resin or cannabis oil) intending to supply or administer the drug to another person,
is guilty of an offence.
...
supply means provide or distribute or offer to provide or distribute;
...Criminal liability under paragraph (e) is determined by reference to the purpose of the possession. The relevant purpose is supply to another person. The paragraph does not require that that supply be supply by the accused. The purpose of possession, so far as the language of the paragraph goes, may be supply by the accused or supply by some other person. It is sufficient therefore if the accused has possession of the drug or substance for the purpose of supply by himself to another person, for the purpose of the accused's participation in the supply by another person to a further person, or simply for the purpose of supply by another person to a further person irrespective of the accused's own participation therein. That appears to be the effect of the language used and I see no reason to limit its natural meaning.
It follows from the above that a courier who is knowingly in possession of a drug or other controlled substance in the course of the supply of that drug or substance by one person to another, is in possession of the drug or substance for the purpose of supply of that drug or substance to another person.
It is unnecessary in the present case to consider whether a courier who is merely transporting a drug or substance from one place to another on the instructions of the owner, could be said to be in possession of the drug or substance for the purpose of supply to another person, because the evidence of the accused in the present case was incapable of establishing that proposition on the balance of probabilities. On his version, he could have no knowledge of the nature of the transaction in which he was participating.
Having made those points I at once acknowledge that nice questions may arise if, in a situation to which sub-s (3) applies, a person in knowing possession proves on the balance of probabilities that his sole involvement in a transaction has been, as a simple courier, to possess a prohibited substance, already the property of his principal, to bring it to his principal from (say) a location in which it has been hidden for safe keeping or a drop off point at which it has been deposited by another for pick up by or on behalf of his principal. It may be arguable that the courier is not then either distributing in the true sense of that word or possessing it for the purpose of the supply of it "to another person" as that phrase is employed in sub-ss (1) and (3).
Whether a person intends to supply a controlled drug if: (a) he intends to transfer physical control of the drug to another; or (b) he intends to transfer physical control of the drug to another for the benefit of the other. 2. If (b) above is correct, whether such benefit is constituted by the return of physical control of the drug to a bailor by a bailee.
Whether a person in unlawful possession of a controlled drug which has been deposited with him for safe keeping has the intent to supply that drug to another if his intention is to return the drug to the person who deposited it with him.
Subject to section 28 of this Act, it is an offence for a person to have a controlled drug in his possession, whether lawfully or not, with intent to supply it to another in contravention of section 4(1) of this Act
The terms of section 4(1) were as follows:
Subject to any regulations made under section 7 of this Act for the time being in force, it shall not be lawful for a person - (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another.
The issue on appeal was the meaning properly to be attributed to the word “supply”.
The word "supply," in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another. No one would ordinarily say that to hand over something to a mere custodier was to supply him with it. The additional concept is that of enabling the recipient to apply the thing handed over to purposes for which he desires or has a duty to apply it. In my opinion it is not a necessary element in the conception of supply that the provision should be made out of the personal resources of the person who does the supplying. Thus if an employee draws from his employer's store materials or equipment which he requires for purposes of his work, it involves no straining of language to say that the storekeeper supplies him with those materials or that equipment, notwithstanding that they do not form part of the storekeeper's own resources and that he is merely the custodier of them. I think the same is true if it is the owner of the business who is drawing from his own storekeeper tools or materials which form part of his own resources. The storekeeper can be said to be supplying him with what he needs. If a trafficker in controlled drugs sets up a store of these in the custody of a friend whom he thinks unlikely to attract the suspicions of the police, and later draws on the store for the purposes of his trade, or for his own use, the custodier is in my opinion rightly to be regarded as supplying him with drugs. On the assumed facts of the present case (they were never tested before the jury), the defendant had been made custodier of the drugs by his unnamed friend, who, having regard to the quantity of the drugs, may legitimately be inferred to have been a trader. If on a later occasion the defendant had handed the drugs back to his friend, he would have done so in order to enable the friend to apply the drugs for the friend's own purposes. He would accordingly, in my opinion, have supplied the drugs to his friend in contravention of section 4(1). It follows that in so far as he was in possession of the drugs with the intention of handing them back to the friend when asked for by the latter, he was in possession with intent to supply the drugs to another in contravention of section 4(1) and was thus guilty under section 5(3).
In accordance with the above analysis, Lord Keith answered the question put to the Court, as amended, in the affirmative.[29]
...So what is the natural and ordinary meaning of the word "supply?" I hesitate to attempt a definition, especially as the word under consideration is not always very precisely used; but to me the word, as used in relation to goods, connotes the idea of making goods available to another from resources other than those of the recipient. This approach is, I consider, consistent with some of the dictionary meanings in the Shorter Oxford English Dictionary, for example, "the act of making up a deficiency, or of fulfilling a want or demand," and "the act of supplying something needed." It is also, I believe, consistent with the ordinary use of the word in everyday speech. So to deliver goods to a buyer or his agent under a contract of sale would obviously be to supply goods to that person, and indeed would perhaps provide the typical example of a supply of goods; though I can see no reason why the delivery of goods by way of gift should not also amount to a supply of goods.
But we are concerned in the present case with a deposit of goods; and I do not feel able to say that either the delivery of goods by a depositor to a depositee, or the redelivery of goods by a depositee to a depositor, can sensibly be described as an act of supplying goods to in this context in ordinary speech. I ask myself: why should I not do so?
I answer: I would not describe the delivery by the depositor to the depositee as a supply of goods, because the goods are not being made available to him but are rather being entrusted to him; and I would not describe the redelivery by the depositee to the depositor as a supply of goods, because the goods are simply being returned to him, rather than being made available to him from resources other than his own.
The context does not, as I see it, require any departure from the natural and ordinary meaning of the word. Moreover, the interpretation which I would give to the word, which I derive from my understanding of the use of the word "supply" in ordinary speech, is consistent with the conclusion of the Court of Appeal in the present case. I must confess that, in a case where I am looking for the ordinary meaning of an ordinary word like "supply," I am much influenced by the fact that the three members of the Court of Appeal, having searched like myself for the ordinary meaning of the word, and having considered the earlier authorities, have reached the same conclusion as I myself have reached. In delivering the judgment of the court, Mann J. said [1986] Q.B. 618, 624:
"In ordinary language the cloakroom attendant, the left luggage officer, the warehouseman and the shoe mender do not 'supply' to their customers the articles which those customers have left with them."
I entirely agree. I cannot imagine ordinary people using the word "supply" to describe any of those four transactions. They would rather talk about redelivering or returning the goods to the customer or, more colloquially, handing them back to him. It follows that, in respectful agreement with my noble and learned friend, Lord Keith of Kinkel, I cannot accept the submission of the Crown that a mere transfer of possession of itself necessarily constitutes a supply. But I find myself, with all respect, unable to agree with my noble and learned friend that it is a sufficient qualification to characterise a transfer of possession as a supply that it should be made in order to meet the wants or requirements of the recipient, such expression being understood to include circumstances where the want or requirement of the recipient is simply to get his own goods back again. Moreover, in the case where a man deposits his own goods with a storeman, and draws on those goods from time to time, I do not think that it would be an appropriate use of the word "supply" to describe the storeman as supplying the depositor when he releases part of the goods to him. Even if the word "supply" were to be used in such a context, I would regard it as a loose or aberrant use of the word which should not be regarded as providing any foundation for the proposition that the word can be appropriately used, or is normally used, in every case where a depositee returns the goods to a depositor.
The definition of "supply" in s 3 is inclusive, not exclusive. So far as it is relevant, that definition is in the following terms:
"Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply. ..."
None of the various limbs of that extended definition would include the mere return of the drugs to their owner or to the person reasonably believed to be the owner. The references to "sending, forwarding, delivering" are all qualified by the words "for supply".
The word "supply", however, retains its ordinary meaning as well as the extended meaning for which that inclusive definition provides. The various dictionary meanings of the word are generally agreed as being to furnish or to provide something which is needed or wanted or required by the person to whom it is given. They do not suggest that the use of the word is appropriate when that something is merely returned to its owner or the person reasonably believed to be its owner.
For my own part, I frankly find that decision [of the majority in Maginnis] to be a surprising one. If my neighbour lends me his lawnmower and, after using it myself, I return it to him to enable him to use it for whatever purposes he may desire, the use of the word "supply" in its ordinary meaning to describe my act of returning the mower to its owner seems to me, with all due respect, to be entirely inappropriate. However, it is submitted by the Crown here that, because drugs are involved, the ordinary meaning of the word is thereby extended.
...
I entirely agree with Lord Goff. I accept that there is no obligation to return the goods where possession of them is illegal, but (like Lord Goff) I am unable to see how the presence or absence of such an obligation is relevant to the ordinary meaning of the word "supply", even in a drugs context. ...
I should also refer to one very common situation which that construction should not be understood as including. That is the situation where one person has obtained a quantity of drugs on behalf of another person or on behalf of a group of persons (which may or may not include himself) and where he transfers physical control of those drugs (or some portion of them) to that other person or to those other persons. That is in no sense analogous to the "bailment" situation as is that with which the present appeal is concerned, and in my view such a situation would necessarily fall within the ordinary meaning of the word "supply".
The decision in Carey has subsequently been followed in New South Wales.[36]
...If the word "supply" means to furnish or provide something which is needed, wanted or required by the person to whom it is given, the delivery by a bailee of a quantity of a drug to the owner who wants, needs or requires the drug for his own use seems to me to fall squarely within that meaning. In the ordinary case where a dealer in drugs supplies them to a person for his or her own use, it is not regarded as in the least anomalous for the dealer to be charged with possession with intent and for the recipient to be dealt with for simple possession. Equally, I have no difficulty with the concept that a bailee holding a quantity of a drug who returns it to the true owner, who is in turn a dealer who sells or supplies to others, should likewise be guilty of possession with intent to supply. ...
After discussing the decision of the majority of the House of Lords and the dissent of Lord Goff in Maginnis, the Chief Justice continued:[40]
I am bound to say that it seems to me that it is within the ordinary meaning of the word "supply" as considered in that case to say that a person with whom drugs are deposited as a bailee by the owner of them, on the basis that he will provide them, furnish them or make them available as and when required by the owner, is supplying them when he does so whenever they are needed, desired or wanted to be used by the owner, either for the purpose of personal use or in turn selling or supplying them to another. The opposite conclusion, however, was, as I have already indicated, reached in Carey, above. ...
...
In my view, if my neighbour lends me his lawnmower, he is supplying me with a lawnmower as something which is needed, wanted or required by me. It is necessarily to be implied in the transaction that the lawnmower is something which is needed, wanted or required by my neighbour for his own purposes. When I return the lawnmower, why am I not furnishing or providing something which is needed, wanted or required by the person to whom it is given, so that the return of it is within the ordinary meaning of "supply"?
Franklyn J reserved a conclusion on the legal points raised, for a time when the issues could be fully argued. Walsh J made no comment on the issue.[41]
There is a much simpler answer to the problem and it is to be found in section 37 (1)—the definition section of the 1971 Act—because these words are to be found: “Supplying includes distributing.” Whatever else Buckley may or may not have been doing when he divided up the cannabis and gave three-quarters of a pound to Gilchrist and kept the other quarter pound for himself, he was without any shadow of a doubt—it seems to us—distributing the cannabis whoever may have been the owner or the custodian or in possession of the drug.
Although not cited in Carey, this is precisely the situation referred to by Hunt J in that case.[46] The Buckley situation was specifically recognised by the Court in Urbano[47] and Manisco.[48]
There is, however, an additional reason why this ground of appeal fails. Upon the appellant's own evidence, and that of Lopez to the extent the latter corroborates him, he had an intent to supply the drugs to Jeff. The very purpose of keeping the drugs at his premises was to enable Jeff to pick the drugs up when it suited Jeff and that in my view is supplying drugs to Jeff. That view seems to be consistent with the decision in Buckley (1979) 69 Cr. App. R. 371 where it was held that one co-owner or co-possessor of a drug could be guilty of supplying the drug to the other co-owner or co-possessor. A similar view was taken in Holmes v. The Chief Constable Merseyside Police a note of which appears in [1976] Crim.L.R. 125.
The case of Buckley was dealing with the position of a co-owner of drugs who collected the bulk on behalf of all the co-owners. It was held that he was supplying when he distributed it among the other co-owners. That is a different set of circumstances to the present. ...
Pidgeon J also recognised that, unlike the Western Australian legislation at that time, the United Kingdom statute[51] included “distribution” in the definition of “supply”.
I agree with Pidgeon J that the construction of the legislation to which each of us has come is consistent with the purpose and policy of the Act. Also, like Hunt J in Carey, I do not think that it will open the floodgates. In many cases the circumstances of the delivery of the drug to the true "owner" (who proposes, in turn, to distribute or sell it to others) will, as Pidgeon J has pointed out, be such as to establish that the person delivering the drug was an accessory of the person to whom the delivery was effected.
Nor, in my opinion, would this construction affect the outcome (under the WA Act) of cases such as Buckley, referred to above, in which one person obtains drugs on behalf of another or others (even if also on his or her own behalf) and then transfers physical control of those drugs or some of them to that other person or those other persons. In such a case the transfer of control would, I think, amount to a "supply" within the ordinary meaning of that word. (Compare the comments of Hunt J in Carey, at 298; 168, referred to above.)
In each of Carey and Tuckey there had been a bailment by the owner to the recipient and the possession of the latter was not for supply but for return in accordance with that bailment. Possession for leverage involved the applicant receiving the goods from a party other than the owner and nominating to that owner the terms and conditions upon which he was prepared to transfer the goods to him. The transfer of possession from the appellant to Janus Khan in those circumstances would seem to me to fit the ordinary meaning of the word supply without any need to call in aid the extended definitions. The notion of exchange of goods for money is ancient and whether it is looked at as barter or trade the notion of passing over the goods in such circumstances fits comfortably with the ordinary meaning of the word supply. Thus, as having in possession for supply is, by statutory definition, to supply, possession for leverage also fits the meaning and is not comprehended by the proviso to s 29.
As was pointed out in R v Carey, in the context of supplying drugs, the word "supply" has received considerable attention from the courts. Dictionary meanings of the word "supply" reinforce that it is "generally agreed" that the word extends to furnishing or providing something to another which is needed or wanted or required by that other to whom it is given. However, "such acts of providing, furnishing or making available [take] place only when the physical control of the drugs was transferred to a person who was not their owner or who was not reasonably believed to be such".
It is from the context of the Act, that "supply" of prohibited drugs, in its ordinary sense, has generally attracted a meaning proper for the supply of a thing for use or sale as drugs. This is why the mere transfer of physical control over drugs does not, as such, constitute "supply", within the Drugs Act (s 6(1)(c)). Any sense of impatience with the point raised by the appellant must be assuaged by consideration of the large number of cases in which similar disputes have arisen and been resolved by the courts. In these cases, concerning whether the passage amounted to "supply" within the statute or not, drugs have undoubtedly passed hands. In a number of cases points no more "technical" than the appellant's argument, have been upheld. Those cases teach that it is necessary to approach the question, as others of a similar kind, without preconceptions, addressing solely the legal issue of whether the proved facts are susceptible to constitute the "supply" as charged and whether the directions of law on the meaning of that word, given in the trial, were adequate in the circumstances of the case.
In some of the cases concerned with the meaning of "supply", attention has been paid to the question whether the alleged supplier owned, or had physical possession and control of, the goods in question. Whilst this is an understandable inquiry in circumstances where the act said to constitute "supply" is claimed to be nothing more than a transfer pursuant to an arrangement of bailment, the word "supply" does not necessarily say anything about the interest of the alleged supplier in the goods "supplied". It is sufficient for the offence if the supplier has control over the goods for the purpose of the "supply" in question. In some cases, control will derive from ownership or the right to possession. In other cases it will involve nothing more than temporary custody. ...
[Footnotes omitted]
Kirby J did not express a view as to which of Maginnis and Carey was to be preferred. Rather, his Honour emphasised that each case will depend on its own unique circumstances.
...Even where the owner is not or is not to the knowledge of the accused a dealer, the passage quoted from R v Maginnis, with respect, demonstrates a flaw in the reasoning in R v Atkinson. The custody being unlawful, the “owner” has no legal right to require the drugs to be handed back to him. In holding them with the intention of returning the drugs to the owner, the custodier is in possession with an intent of adding to the number of persons who at that moment have access to it. ...
Analysis
...When money is handed over by one person to another to be applied for a particular purpose, it is a question of fact whether it is intended that the very coins, notes or cheques shall be retained by the recipient until they are so applied and then applied in specie; or whether it is intended that the recipient shall, or may if he choose, become a debtor for the amount so received and assume an obligation to pay an equivalent amount for the prescribed purpose. In the former case, the specific money remains the property of the person who handed it over, until it is so applied. ...
Applying those principles, Jordan CJ continued:[68]
...In the present case, if a cheque for the deposit had been handed over in strict accordance with clause 4 of the contract form, I am of the opinion that the appellant, as stakeholder, would have received it not as bailee but subject to a liability to account. Since the terms of the clause were departed from, and the deposit was paid over in banknotes to a person who was purporting to act as solicitor for both parties, I think that bailment is a not impossible inference, although an intention that the appellant should be at liberty, if he chose, to treat the notes as his own subject to a liability to account for an equivalent sum might be regarded as more probable.
Thus we are driven back to considering the word "supply" in its context. The judge himself relied upon the dictionary definition, which is a fairly wide one. This court has been referred to the Shorter Oxford English Dictionary, which gives a large number of definitions of the word "supply," but they have a common feature, viz: that in the word "supply" is inherent the furnishing or providing of something which is wanted.
In the judgment of this court, the word "supply" in section 5(3) of the Act of 1971 covers a similarly wide range of transactions. A feature common to all of those transactions is a transfer of physical control of a drug from one person to another. In our judgment questions of the transfer of ownership or legal possession of those drugs are irrelevant to the issue whether or not there was intent to supply.
[Emphasis added]
...One who deposits controlled drugs of which he is in unlawful possession with a temporary custodier has no legal right to require the drugs to be handed back to him. Indeed it is the duty of the custodier not to hand them back but to destroy them or to deliver them to a police officer so that they may be destroyed. The custodier in choosing to return the drugs to the depositor does something which he is not only not obliged to do, but which he has a duty not to do. Any analogy with bailment is false in a situation where the depositor has no right to ownership which the law would recognise and certainly none to immediate possession.
Statutory Interpretation
An Act to regulate or prohibit the manufacture, production, sale, supply, possession, handling or use of certain poisons, drugs, therapeutic and other substances, and of certain therapeutic devices; to repeal the Food and Drugs Act 1908; and for other related purposes.
This description demonstrates that the ultimate purpose of the Act is to control any dealings by anyone with controlled substances. With respect to drugs, the provisions of the Act prohibiting certain activities can be seen ultimately to be aimed at preventing illicit drug use.
Joint Possession
Appeal Against Sentence
You are 25 years of age and have no previous convictions.
Your background is described in the psychological report by Dr White. You come from a good and supportive family. You completed education to year 12 and for several years you attended at the Australian Institute of Sport where you played volleyball as an elite athlete. You worked as a salesperson for a time and currently work in a call centre for a telecommunications provider. A letter from your supervisor speaks highly of you and indicates that you elected to be employed on an incentive arrangement pursuant to which you have earnt significant monthly bonuses.
The Judge noted that he had read the references provided in relation to the defendant, including those from his parents. The Judge indicated that he was satisfied that the offending was out of character. The Judge drew attention to the psychological assessment of the defendant:
Dr White said that a psychological assessment indicated that you are a person with intense emotional instability and that you coped poorly with stressful situations. The assessment indicated that you craved excitement and were likely to seek highs through substance abuse. Dr White said the evidence suggested that when using substances, you also experienced associated lows the following day which caused you much distress and have impacted significantly on your life. It is Dr White’s opinion that your offending involved an attempt to gain emotional highs following an emotional void that was left after your former life as an elite athlete.
Dr White in the assessment indicated you experienced problems in certain areas and that he has recommended you be referred to programs dealing with mental health, substance abuse and anger management. He said that if you were able to address those requirements, your risk of reoffending would be greatly reduced.
Your counsel urged me not to impose a conviction. She suggested that a conviction may cause difficulty if you wished to travel or join the police force.
The prosecutor pointed out that you were not completely frank in your initial admissions to the police and that you have changed your story. The prosecutor also pointed out that you did not plead guilty at the earliest opportunity and submitted that you should not receive the full credit for your plea. The prosecutor submitted that important factors in the sentencing process are general and personal deterrence and that possessing drugs with intent to supply in a group arrangement is a serious offence. The prosecutor submitted that the circumstances did not amount to good reason not to record a conviction and when a person is convicted of a serious offence, it is important that a conviction be recorded.
Even on your own version of the facts, which the Crown accepts, it was a serious offence. In my opinion the seriousness of the offence is such that it would not be appropriate for a conviction not to be recorded.
Notwithstanding the reclassification of methylamphetamine in interstate and overseas jurisdictions, having regard to the authorities of this Court, methylamphetamine should continue to be treated as a drug in the middle range of seriousness. This Court has repeatedly made it clear that before a change to the general classification of methylamphetamine will be considered, evidence will need to be provided to the court to support the application. If the position is as clear as the Director suggests, there should be no difficulty in presenting the relevant material before the court. As was noted by the Director in the course of submissions, it would be open for the Director to seek a guideline pursuant to s 29A of the Criminal Law (Sentencing) Act.
This Court was not presented with any such evidence or information in relation to ecstasy in the present proceeding.
For myself, I would express the following reservations about the present classification of amphetamines and the passages I have cited. First, in my view the very classification of drugs as low, middle or high range is problematic. The classification may refer to the degree to which the drug compromises the sensory and reasoning faculties and the degree of risk to the user and others posed by those effects. It may, alternatively, refer to the longer-term detrimental physiological effects of the drugs on the user. Yet a further possibility is that the classification is a reference to the broader social harm caused by the drug. For example, use of the drug may contribute to the commission of other crimes by its users, or trading in a particular drug may be a major contributor to the financial resources of organised crime syndicates. The classification may involve some combination and balancing of all three factors. There may also be other factors which I have not here identified. The ranking of a particular drug may vary considerably depending on the measure used. For that reason, I doubt the practical utility of a simple one-dimensional classification of drugs for the purposes of sentencing. Moreover, whatever classification is given to a drug, the appropriate sentencing range will be affected by its prevalence from time to time.
[Footnote omitted]
Conclusion
[1] Manisco v The Queen (1995) 14 WAR 303 at 304.
[2] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303.
[3] R v Carey (1990) 20 NSWLR 292.
[4] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 309.
[5] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 314.
[6] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 314.
[7] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 314.
[8] R v Maginnis [1986] QB 618 at 624.
[9] R v Carey (1990) 20 NSWLR 292.
[10] R v Carey (1990) 20 NSWLR 292 at 294.
[11] Manisco v The Queen (1995) 14 WAR 303.
[12] Manisco v The Queen (1995) 14 WAR 303 at 306.
[13] Manisco v The Queen (1995) 14 WAR 303 at 315.
[14] Urbano (1983) 9 A Crim R 170.
[15] Manisco v The Queen (1995) 14 WAR 303 at 316.
[16] R v Pelham (1995) 82 A Crim R 455.
[17] Excell v Dellaca (1987) 87 FLR 157.
[18] Excell v Dellaca (1987) 87 FLR 157 at 160.
[19] R v Carey (1990) 20 NSWLR 292 at 294.
[20] R v Carey (1990) 20 NSWLR 292 at 297.
[21] R v Morton (1986) 42 SASR 571.
[22] R v Morton (1986) 42 SASR 571 at 573; cited in R v Symons (1988) 32 A Crim R 370 at 372, 375.
[23] R v Morton (1986) 42 SASR 571 at 573.
[24] R v Morton (1986) 42 SASR 571 at 580.
[25] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303.
[26] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 308.
[27] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 313.
[28] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 309.
[29] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 313, (Lord Brandon, Lord Mackay and Lord Oliver agreed with the reasons of Lord Keith).
[30] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 313.
[31] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 314-315.
[32] R v Carey (1990) 20 NSWLR 292.
[33] R v Carey (1990) 20 NSWLR 292 at 294.
[34] R v Carey (1990) 20 NSWLR 292 at 295-296.
[35] R v Carey (1990) 20 NSWLR 292 at 297.
[36] Liberti v The Queen (1991) 55 A Crim R 120; Tuckey v The Queen (1991) 57 A Crim R 468; Frazer v The Queen [2002] NSWCCA 59; (2002) 128 A Crim R 89.
[37] Manisco v The Queen (1995) 79 A Crim R 213 at 217.
[38] Pelham v The Queen (1995) 82 A Crim R 455.
[39] Pelham v The Queen (1995) 82 A Crim R 455 at 458.
[40] Pelham v The Queen (1995) 82 A Crim R 455 at 461-462.
[41] Pelham v The Queen (1995) 82 A Crim R 455 at 472.
[42] Misuse of Drugs Act 1981 (WA) section 3, definition of “supply” inserted by Misuse of Drugs Amendment Act 1998 (WA) (No 3 of 1998); see eg R v Pinkstone (2001) 24 WAR 406 at [41]; Davies v State of Western Australia [2005] WASCA 47; (2005) 30 WAR 31 at [27].
[43] R v Buckley (1979) 69 Cr App R 371.
[44] Geoffrey Lane LJ, Swanwick and Waterhouse JJ.
[45] Buckley (1979) 69 Cr App R 371 at 373. Geoffrey Lane LJ referred to the earlier decision of the Divisional Court in Holmes v Chief Constable of the Merseyside Police [1976] Crim LR 125 in support of this conclusion.
[46] R v Carey (1990) 20 NSWLR 292 at 297.
[47] Urbano v The Queen (1983) 9 A Crim R 170.
[48] Manisco v The Queen (1995) 79 A Crim R 213.
[49] Urbano v The Queen (1983) 9 A Crim R 170 at 184.
[50] Manisco v The Queen (1995) 79 A Crim R 213 at 216.
[51] Misuse of Drugs Act 1971 (UK).
[52] Manisco v The Queen (1995) 79 A Crim R 213 at 226 (Steytler J).
[53] Pelham v The Queen (1995) 82 A Crim R 455 at 459.
[54] Misuse of Drugs Act 1971 (UK).
[55] Davies v Western Australia [2005] WASCA 47; (2005) 30 WAR 31.
[56] Asim v The Queen (1997) 92 A Crim R 97.
[57] Asim v The Queen (1997) 92 A Crim R 97 at 99-100.
[58] R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462.
[59] Krakouer v The Queen [1998] HCA 43; (1998) 194 CLR 202 at [29], footnote 24.
[60] Pinkstone
v The Queen [2004] HCA 23 ; (2004) 219 CLR 444 at [99] - [101] .
[61] R v Byrne [1990] NZHC 1052; [1991] 2 NZLR 599.
[62] R v Atkinson [1981] 2 NZLR 663.
[63] R v Byrne [1990] NZHC 1052; [1991] 2 NZLR 599.
[64] R v Byrne [1990] NZHC 1052; [1991] 2 NZLR 599 at 600-601.
[65] R v Carey (1990) 20 NSWLR 292 at 297.
[66] R v Ward (1938) 38 SR (NSW) 308.
[67] R v Ward (1938) 38 SR (NSW) 308 at 315.
[68] R v Ward (1938) 38 SR (NSW) 308 at 318.
[69] R v Delgado [1984] 1 WLR 89 at 92.
[70] R v Maginnis [1987] UKHL 4; [1987] 1 AC 303 at 312-313.
[71] See eg R v Byrne [1990] NZHC 1052; [1991] 2 NZLR 599, where Eichelbaum CJ held that a person who has a drug deposited with them for safekeeping has possession for the purpose of supplying if the intention is to return the drug to the depositor.
[72] R v B, MA [2007] SASC 384; (2007) 99 SASR 384 at [15], citing with approval Seay v Eastwood [1976] 1 WLR 1117 at 1121 and Brutus v Cozens [1972] UKHL 6; [1973] AC 854.
[73] In accordance with section 22(1) of the Acts Interpretation Act 1915 (SA).
[74] R v Ward (1938) 38 SR (NSW) 308.
[75] R v Ward (1938) 38 SR (NSW) 308 at 315.
[76] Section 33I of the Controlled Substances Act 1984 (SA) relevantly provides
33I—Supply or administration of controlled drug
(1) A person who—
(a) supplies or administers a controlled drug (other than cannabis, cannabis resin or cannabis oil) to another person; or
(b) has possession of a controlled drug (other than cannabis, cannabis resin or cannabis oil) intending to supply or administer the drug to another person,
is guilty of an offence.
Maximum penalty: $50 000 or imprisonment for 10 years, or both.
[77] Counsel pointed out that this knowledge has been gained since the decision in R v Gibbons (1998) 72 SASR 408, which involved an analogous factual situation.
[78] R v Ford [2008] SASC 46; (2008) 100 SASR 94.
[79] R v Ford [2008] SASC 46; (2008) 100 SASR 94 at [37], [40].
[80] See Darwell v The Queen (1997) 94 A Crim R 35.
[81] See Drugs Misuse Amendment Regulation (No 2) 2001 (Qld) which amended the Drugs Misuse Regulation 1987 (Qld) to upgrade methylamphetamine from a Schedule 2 Dangerous Drug to a Schedule 1 Dangerous Drug, increasing the maximum available penalties for trafficking, supplying, producing and possessing the drug. The reclassification came into effect on 21 September 2001.
[82] The Misuse of Drugs Act 1971 (Amendment) Order 2006 (UK) reclassifies methylamphetamine, previously a Class B drug, as a Class A drug. The reclassification came into force on 18 January 2007.
[83] The Order Amending Schedules 1 and III to the Controlled Drugs and Substances Act (Methamphetamine) S.C. 1996, c. 19, SOR/2005-235, reclassifies methamphetamine, previously a Schedule III substance, as a Schedule I substance. The reclassification came into force on 10 August 2005.
[84] The Misuse of Drugs (Changes to Controlled Drugs) Order 2003 (NZ) discussed in R v Arthur [2005] 3 NZLR 739 reclassifies methylamphetamine, previously a Class A controlled drug, as a Class B controlled drug. The reclassification came into force on 30 May 2003.
[85] R v Ford [2008] SASC 46; (2008) 100 SASR 94 at [41], the previous authorities referred to were R v Becker [2005] SASC 186; (2005) 91 SASR 498 (Gray, Sulan and Layton JJ) and R v Sladic [2005] SASC 210; (2005) 92 SASR 36.
[86] R v Cramp [2010] SASC 51; (2010) 106 SASR 304.
[87] R v Beresford (1972) 2 SASR 446 at 449-500.
[88] R v Cronn (1983) 34 SASR 555 at 556 (King CJ, with whom Mohr J agreed).
[89] R v Ford [2008] SASC 46; (2008) 100 SASR 94 at [41].
[90] R v Sladic [2005] SASC 210; (2005) 92 SASR 36 at [26.
[91] R v Cramp [2010] SASC 51; (2010) 106 SASR 304 at [76].
[92] See the appendix to the judgment of Kourakis J in R v Cramp [2010] SASC 51; (2010) 106 SASR 304.
[93] R v Yousef [2005] SASC 203; (2005) 155 A Crim R 134 at [60]- [62]; R v Lambert [2009] SASC 307 at [19]- [20]; Phillips v Police [2010] SASC 240 at [15].
[94] Phillips v Police [2010] SASC 240 at [15].
[95] See Police v Singh [2010] SASC 104 at [21] (Kourakis J).
[96] R v Lambert [2009] SASC 307 at [22] (Sulan J).
[97] R v Gibbons (1998) 72 SASR 408 at 412 (Prior J, with whom Cox and Olsson JJ agreed).
[98] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 348 (Kirby J).
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