Citation: [2002] NSWCCA 403; (2002) 133 A Crim R 547
Court: Court of Criminal Appeal, New South Wales
Date: 3 October 2002
Judge(s): Meagher JA, Sperling J, Greg James J
Background
The appellant was convicted in the District Court of supplying a prohibited drug, specifically 4.42 grams of heroin found on his person during a police search of his Enmore home in March 2000. Also found at the premises were six foils and nine water balloons containing heroin, electronic scales, empty balloons, cash totalling approximately $5,650, and 24 gold bars valued at around $12,000 concealed in what appeared to be a shrine.
The offence arose under the Drug Misuse and Trafficking Act 1985, which deems a person in possession of at least the traffickable quantity of a prohibited drug to have possessed it for supply, unless that person proves the possession was for a purpose other than supply. The appellant ran a "personal use" defence, claiming he was a heroin user and that the heroin was for his own consumption. He offered explanations for the scales and balloons, and gave evidence at trial in support of his defence.
Judge Dodd sentenced him to three years' imprisonment with a non-parole period of two years and three months. The appellant appealed both the conviction and the sentence.
Legal Issues
- Whether evidence of the gold bars found at the premises was wrongly admitted at trial
- Whether evidence of both the cash and the gold bars was wrongly admitted, on the basis that it unfairly prejudiced the appellant's "own use" defence
- Whether the trial judge's directions to the jury on the meaning of "did supply" were incomplete
- Whether the trial judge gave flawed directions regarding the appellant's own evidence
- Whether special circumstances existed to warrant a different non-parole period on sentence
- Whether the sentence overall was excessive, including whether the offence should have been treated as isolated
Decision
The Court of Criminal Appeal, with Greg James J delivering the principal judgment and Meagher JA and Sperling J agreeing, dismissed both the conviction appeal and the sentence appeal.
On the first two grounds, the court held that evidence of the cash and gold bars was relevant and properly admitted to rebut the appellant's "own use" defence. The presence of significant cash and concealed gold bars was capable of undermining the credibility of the claim that the heroin was held purely for personal consumption. The court found no error in the trial judge's decision to admit this evidence.
As to the directions grounds, the court found no material flaw in the summing-up. Critically, the appellant's own counsel had conceded at the hearing that the Crown case was very powerful and acknowledged that the proviso in section 6 of the Criminal Appeal Act 1912 might apply even if any grounds were made out. The court noted that the appellant's statement to police, that he had not yet formed an intention either way about whether to use or sell the heroin, could not of itself satisfy the statutory burden, which required positive proof that possession was for a purpose other than supply.
On sentence, the court rejected the contention that special circumstances warranted a longer parole period or that the offending should be treated as isolated. The trial judge had expressly found the appellant was a heroin dealer and that the offence was not a one-off event. The Court of Criminal Appeal found no error in that reasoning and characterised the sentence as well within the appropriate statistical range. The court noted that hardship to the appellant's family, raised from the bar table, was not a matter available to the appellate court to take into account.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Under the Drug Misuse and Trafficking Act 1985, a person found in possession of at least the traffickable quantity of a prohibited drug bears the onus of positively proving possession for a purpose other than supply; a statement that no intention had yet been formed is insufficient to discharge that burden.
- Evidence of significant cash and concealed gold bars found at premises is capable of being relevant and admissible to rebut a claimed "own use" defence in a deemed supply prosecution.
- In dismissing the conviction appeal, the Court of Criminal Appeal noted the concession by defence counsel that the Crown case was very powerful, reinforcing the high threshold for overturning a jury verdict where the proviso in section 6 of the Criminal Appeal Act 1912 may apply.
- A sentencing court's finding that an offence was not isolated, made on the basis of the verdict and surrounding evidence, will not readily be disturbed on appeal where that finding is amply supported by the facts.
- Hardship suffered by a convicted person's family during imprisonment is not, according to this decision, a matter an appellate court is able to take into account on a sentence appeal.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW)
- Criminal Appeal Rules
Cases
- Festa [2001] HCA 72
- Chai [2002] HCA 12
- Lawrence (1981) 1 All ER 974
- Williams (1990) 50 A Crim R 213
- Alford v Magee (1952) 85 CLR 437
- Sandford (1994) 33 NSWLR 172
- Robinson (1991) 180 CLR 531
- Simpson [2001] NSWCCA 534