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District Court 9 February 2021

O’Neill v R

[2021] NSWDC 468

Drugs
CRIMINAL LAW CONVICTION APPEAL CONVICTION RE METHAMPHETAMINE UPHELD

Citation: O'Neill v R [2021] NSWDC 468
Court: District Court of New South Wales
Date: 9 February 2021
Judge(s): Neilson DCJ

Background

The appellant had been staying for approximately three weeks in a Pyrmont unit rented by a friend when police attended to serve a Firearm Prohibition Order under the Firearms Act 1996. Following the service of that order, police conducted a lawful search of the unit and discovered significant quantities of two prohibited drugs: gamma-Butyrolactone (GBL), a liquid drug found in opaque, labelled bottles in each bathroom and in cordial bottles in the fridge; and methylamphetamine, found in various locations including the balcony and a bedroom.

The appellant was charged with two counts of deemed supply of prohibited drugs, one relating to the GBL and one to the methylamphetamine. She was convicted of both charges by Magistrate Stewart in the Central Local Court on 8 September 2020 and sentenced to an aggregate term of two years and six months imprisonment, with a non-parole period of 18 months.

The appellant challenged both convictions on appeal to the District Court, arguing primarily that she did not have exclusive occupancy of the unit and, in any event, did not know the prohibited drugs were present.

  • Whether the appellant was the sole or exclusive occupier of the unit at the relevant time
  • Whether the appellant had knowledge of the presence of the GBL found in the unit
  • Whether the appellant had knowledge of the presence of the methylamphetamine found in the unit
  • Whether the aggregate sentence required adjustment following any change to the convictions

Decision

Neilson DCJ upheld the magistrate's finding that the appellant was the exclusive occupier of the unit at the relevant time. The magistrate had identified 20 factors supporting that conclusion, and while the District Court expressed some of those reasons differently, it accepted the overall finding. The appellant's statement to police that the unit was her friend's place and that she was merely staying there did not displace the finding of occupancy on the evidence as a whole.

On the GBL charge, the District Court was not satisfied that the prosecution had proved the appellant knew the drug was present. The GBL was contained in opaque bottles labelled entirely in what appeared to be Chinese, Korean, or Japanese characters, with no English text. Those bottles were stored among numerous other bottles in the shower cubicles of each bathroom. The court found these bottles may well have been left by a previous occupier, and there was nothing in the circumstances to alert the appellant to their drug content. The prosecution therefore failed to establish the requisite knowledge for this charge, and the conviction was quashed.

The methylamphetamine conviction was upheld. The drug was found in multiple locations throughout the unit, including on the balcony where the appellant had been sitting during the search, and in a bedroom where a black bag containing a letter addressed to the appellant was found nearby. The court was satisfied the prosecution had proved the appellant's knowledge of the presence of the methylamphetamine.

On sentence, the aggregate sentence imposed by the magistrate was set aside as a consequence of the GBL conviction being quashed. The court applied the magistrate's indicative sentence of 12 months for the methylamphetamine offence and, adopting the magistrate's finding of special circumstances, fixed a non-parole period of seven months, calculated at 60 percent of the head sentence.

Orders Made

  • Conviction for the GBL supply offence (sequence 1) set aside
  • Aggregate sentence imposed by the Local Court on 8 September 2020 set aside
  • Appellant sentenced to 12 months imprisonment for the methylamphetamine supply offence
  • Non-parole period of seven months, commencing 15 July 2020 and expiring 14 February 2021
  • Additional term of five months, expiring 14 July 2021
  • Special circumstances found; appellant eligible for parole on 14 February 2021

Key Takeaways

  • A conviction for deemed supply of a prohibited drug requires proof that the accused knew of the presence of the substance in question. Exclusive occupancy alone does not establish that knowledge.
  • Where a drug is stored in opaque, foreign-labelled containers among ordinary household bottles, and may plausibly have been left by a prior occupier, a court may decline to infer the accused's knowledge of its presence.
  • The District Court confirmed that the methylamphetamine conviction was sound where the drug was found in multiple locations throughout a unit, including one closely associated with the appellant's personal belongings and her physical presence during the search.
  • In quashing one of two charges making up an aggregate sentence, the sentencing structure required reconsideration. The court applied the original indicative sentence for the surviving charge and preserved the magistrate's special circumstances finding when restructuring the sentence.
  • He Kaw Teh v The Queen (1985) 157 CLR 523, which confirms that knowledge of the nature of a prohibited substance is an element of drug offences, was relevant to the court's analysis of the GBL charge.

Legislation and Cases Referenced

Legislation
- Firearms Act 1996 (NSW), s 74A (Firearm Prohibition Orders)

Cases
- He Kaw Teh v The Queen (1985) 157 CLR 523
- R v Filippetti (1978) 13 A Crim R 335