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Court of Criminal Appeal 19 December 2014

White v R

[2014] NSWCCA 329

Drugs
CRIMINAL LAW ONGOING SUPPLY OF METHYLAMPHETAMINE

Citation: White v R [2014] NSWCCA 329
Court: Court of Criminal Appeal, NSW
Date: 19 December 2014
Judge(s): Hidden J, Price J, Schmidt J

Background

The appellant pleaded guilty in the District Court to a charge of supplying methylamphetamine on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The charge arose from three transactions in June 2013 in which the appellant obtained the drug from a supplier and passed it to undercover police officers. He was sentenced to three years' imprisonment with a non-parole period of 18 months, commencing 19 July 2013.

The case reached the Court of Criminal Appeal as a sentence appeal, but at the hearing the appellant sought leave to appeal against the conviction itself. The basis for that application emerged from the agreed facts and the appellant's own evidence at the sentence proceedings.

On the first two occasions, the appellant used money supplied by the undercover officers to purchase the drug and passed it on, keeping nothing for himself. On the third occasion, he pooled the officer's money with his own funds to obtain a small quantity of the drug for his personal use, effectively buying drugs on credit.

  • Whether the offence of ongoing supply under s 25A(1) of the Drug Misuse and Trafficking Act 1985 requires that the accused personally receive a financial or material reward on each of the three or more occasions of supply
  • Whether, on the agreed facts and the appellant's own evidence, there was sufficient evidence of financial or material reward to the appellant on each of the three transactions
  • Whether the conviction should be quashed and, if so, whether a new trial or an acquittal was the appropriate remedy

Decision

Section 25A(1) requires that a person supply a prohibited drug "for financial or material reward" on three or more separate occasions within 30 consecutive days. The Court followed its earlier decision in Regina v Jackson [2004] NSWCCA 110, in which Sully J held that the section requires the accused himself to have received a financial or material reward on each occasion relied upon. A transaction that is commercially motivated in a general sense is not sufficient if the reward does not flow to the accused personally.

Applying that principle, the Court found that the appellant had not received any financial or material reward on the first two transactions. He simply used the officers' money to buy the drug and handed it over, deriving no benefit. On the third occasion, the sentencing judge accepted that the appellant obtained a benefit, described as "of a notional kind," by being able to purchase drugs for himself on credit. The Court accepted that this third occasion may have satisfied the reward requirement, but the first two occasions plainly did not.

The appellant's plea of guilty had been entered under a misapprehension as to the relevant law. Following Liberti (1991) 55 A Crim R 120, the Court found that this constituted a miscarriage of justice and that the conviction must be set aside.

On the question of remedy, the appellant submitted that the court should enter an acquittal because he had served most of his non-parole period, which was due to expire in January 2015. The Court declined to do so. The agreed facts and the appellant's admissions were capable of establishing supply on three occasions, and s 25A(4) permits a jury to return an alternative verdict in respect of any of the individual supply occasions. The Court noted that the question of whether to proceed further was properly a matter for the Director of Public Prosecutions, citing Dyers v The Queen [2002] HCA 45.

Orders Made

  • Leave to appeal against conviction granted
  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the Crown must establish that the accused personally received a financial or material reward on each of the three or more occasions of supply, not merely that the transaction was commercial in nature.
  • Acting as a conduit, where the accused uses money supplied by another to purchase drugs and passes them on without personal gain, does not satisfy the "financial or material reward" element for those individual transactions.
  • A guilty plea entered under a misapprehension about the legal elements of the offence can constitute a miscarriage of justice warranting the quashing of the conviction, consistent with Liberti.
  • Quashing a conviction does not automatically result in an acquittal. Where the underlying facts are capable of supporting a conviction on the charge or an alternative offence, a new trial may be ordered even where the accused has served most of the non-parole period.
  • The decision whether to re-prosecute following a quashed conviction is properly left to the Director of Public Prosecutions, not resolved by the appellate court entering an acquittal: see Dyers v The Queen.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25A(1), 25A(4)

Cases:
- Regina v Jackson [2004] NSWCCA 110
- Liberti (1991) 55 A Crim R 120
- Dyers v The Queen [2002] HCA 45, 210 CLR 285