The Queen v Setters[1999] QCA 350

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A No 74 of 1999

Townsville

THE QUEEN

v

DANIELA SETTERS

(Applicant)

McMurdo P

Thomas JA

Cullinane J

Judgment delivered 24 August 1999

Separate reasons for judgment of each member of the Court, each concurring as to the order made

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 24 August 1999

1. The applicant pleaded guilty on 4 March 1999 to one count of possession of a dangerous drug, heroin, on 8 November 1998 with the circumstance of aggravation that the quantity exceeded that specified in Schedule 3 of the Drugs Misuse Regulation 1987.  She was sentenced to two years imprisonment with a recommendation for parole after nine months.  The applicant claims the judge wrongly found the drugs were for a commercial purpose and that the sentence was consequently manifestly excessive.

2. The applicant was also convicted of one count of possession of property, namely electronic scales, a knife, scissors and tweezers, reasonably suspected of having been acquired for the purpose of committing an offence defined in Part 2 of the Drugs Misuse Act 1986-1988.  His Honour took that matter into account in imposing the penalty on the major charge and did not impose any additional punishment.  He also recommended that the applicant be provided with drug rehabilitation and physical care that her condition may require.

3. On 8 November 1998, police executed a warrant on the applicant's address shared with her husband.  Her husband was detained by police as he left the premises and after tooting his horn he let them into the house.  The applicant was sitting at a table placing a white rock-like substance, later analysed as heroin, into small plastic bags.  Nine amounts of white powder had already been bagged.  Approximately 7.2 grams of the white rock substance was in a condom.  The total amount seized throughout the house, including some located in clothing, was 10.758 grams of powder containing 5.185 grams of pure heroin.  Photographs tendered at sentence showed the careful way in which the applicant weighed and packaged the heroin into four approximate 0.5 gram packages and five approximate 0.1 gram packages, 0.1 gram being a street level deal.  Two further packets each of approximately 0.1 gram were found secreted in her bra.

4. She was asked by a police officer: "What's the purpose of putting ... that white powder ... into 1.1 (sic) grams", and she responded: "So I don't use it all in once."  The police officer said, "That's a fair whack to have for your personal use."  There was no immediate response.  Another police officer said, "That's not all for you, is it?  That powder."  She replied, "Yes."

5. The wholesale value of the drugs was $2000-$3000 and the street value $8000-$10000. 

6. The prosecutor invited the learned sentencing judge to draw an inference beyond a reasonable doubt that this was a commercial operation.  No powder used for cutting the powdered heroin was found, nor were the trappings of business, such as large quantities of money, customer lists and so forth.

7. The applicant's counsel below submitted that the applicant was a heroin addict who bought drugs, had a taste and then broke them up into usable amounts for her own use and that of her husband, who was also an addict.  The judge indicated in strong terms that he did not accept that submission.

8. In sentencing the applicant, his Honour said: "It is quite plain that you were involved in a commercial activity relating to these drugs" later commenting: "... you are engaged in the most terrible occupation."

9. It was clear there was a dispute on the facts before the sentencing judge as to whether the applicant intended to use some of the heroin commercially or whether the heroin was solely for domestic use.  The applicant was represented by an experienced barrister, who did not seek to call or give evidence after the judge made plain he did not accept counsel's submissions that the drugs were for her own use. 

10. In R v Nardozzi^[1] this Court held that in respect of offences under s 9 of the Drugs Misuse Act 1986 where it was alleged that the drugs were for a commercial purpose, that is, possession with an intention to supply others for profit, the Crown had the onus of proving that fact.  R v Morrison^[2] established that in such circumstances where the disputed fact would increase the penalty, the standard of proof is beyond reasonable doubt.

11. The primary issue is whether his Honour was entitled to conclude that the applicant was involved in commercial activity relating to these drugs beyond reasonable doubt on the undisputed facts before him.  The applicant was carefully measuring approximate 0.1 and 0.5  gram amounts of white rock substance and packaging them into small plastic bags; 0.1 gram packets were street size deals; a total of 10.758 grams of powder containing 5.185 grams of heroin was found in locations through the house, including two packets hidden in the applicant's bra.  There was no immediate response when the police officer said to her, "That's a fair whack to have for your personal use," although she later claimed that the large quantity of heroin was for her personal use.  Although it was accepted the applicant and her husband were addicts, there was no evidence as to the extent of their habit.  Their usage of heroin must have indeed been high to justify such a large quantity for personal use.  The facts placed before his Honour entitled him to draw the inference beyond reasonable doubt that the applicant was dealing with the heroin for commercial purposes, at least in part.  That inference may have been able to be rebutted by evidence as to the extent of the heroin habit of the applicant and that of her husband and the reasons why it was being packaged into easily transportable 0.5 and 0.1 gram street level quantities.  In the absence of such an explanation, his Honour was entitled to draw the inference that the heroin was in part for a commercial purpose beyond reasonable doubt.

12. A secondary issue is whether his Honour considered the correct standard of proof.  His Honour's expression "quite plain" in the circumstances where he was invited by the prosecution to draw the inference beyond reasonable doubt satisfies me that he reached that conclusion beyond reasonable doubt, although it is preferable judges use the expression "beyond reasonable doubt" when fact-finding to that standard.

13. The applicant also submits that the judge failed to give sufficient weight to the applicant's drug dependency, and other mitigating factors such that the sentence was manifestly excessive.  

14. The applicant has no prior convictions and is 38 years old.  She pleaded guilty at an early stage.  She was born in Italy; her mother died when the applicant was 16 years old.  The applicant became ill and developed eating disorders and was prescribed antidepressants.  At about 18, she was introduced to drugs and in 1991 came to Australia to get away.  She obtained employment in the tourism industry for some years and remained drug free.  She married John Setters, who also had a drug problem and for some years they each tried at various times to rid themselves of this addiction.  In 1997, she attempted suicide.  At the time of sentence she was anxious to return to Italy to visit her 76 year old father who was desperately ill on a life support system. Sadly, her father, an Italian national, has died since her sentence and a copy of his death certificate was tendered in these proceedings.

15. A medical report from GP Dr Jenkins was tendered at sentence: the applicant was suffering from substance abuse, hepatitis C, hepatitis B, alcohol abuse, chronic anaemia, eating disorder and depression; she has had a narcotic addiction since November 1995; she has attempted suicide; she has been on and off the methadone program on several occasions but continues to use heroin on a regular basis. 

16. Once it is accepted that the judge was entitled to find the applicant was using drugs for a commercial purpose, general and particular deterrence usually require a penalty which involves a period of actual custody; at present the only places available for drug addicts to serve actual terms of imprisonment is in standard community correctional centres.  Despite the many mitigating factors of this tragic case, it cannot be said the sentence imposed was outside the exercise of a sound sentencing discretion.

17. I would refuse the application for leave to appeal.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 24 August 1999

1. The applicant was sentenced to two years imprisonment with a recommendation for consideration of parole after nine months for possession of heroin exceeding the quantity specified in Schedule 3 of the Drugs Misuse Regulation 1987.  It is common ground that the sentence can only be justified on the basis of a finding made against the applicant that she possessed the heroin for a commercial purpose.

2. The sentencing court was presented with very limited evidence.  It is accepted by both parties that the onus lay upon the prosecution to prove the issue of commercial purpose beyond reasonable doubt.^[3]  Careful analysis of that evidence is therefore necessary. 

3. The applicant and her husband shared a unit at Bungalow in Cairns. Police observed the husband depart the premises and detained him. He told them that his wife was not home. However he gave them the key to the house and let them in after tooting his car horn.

4. When police entered the premises the applicant was sitting at the dining room table placing a white rock-like substance into small plastic bags.  There were nine small plastic wrapped packages which the police labelled as "deals" and a more substantial quantity of the white rock substance in a condom on the table.  It may be inferred that the applicant was in the process of "cutting" that rock and placing it into smaller packages with a knife when she was interrupted.  As well as the knife she had scissors, tweezers, plastic sandwich bags and electronic scales.  There were located on her sideboard two syringes containing equal quantities of light brown fluid.

5. The police search also produced two small bags of heroin located in the applicant's bra.  The following is the only relevant questioning placed before the court.

"Righto, what's the purpose of putting those - that white powder or the heroin into 1.1 grams?-- So I don't use it all in once.

So you what, sorry?-- Don't use it all in once.

So you don't use it all in once?  That's a fair whack to have for your personal use, a fair bit to have for your personal use, don't you reckon?"

There was no immediate response by the appellant.  Another police officer then asked, "That's not all for you is it that powder?" to which the applicant replied "Yes."

6. The total of all substances containing heroin (including that in the syringes) was 10.758 grams, which on analysis contained 5.185 grams of pure heroin.

7. With respect to the question "What's the purpose of putting the heroin into 1.1 grams?" the Crown prosecutor interpolated to the court that "point one of a gram of course is a street level deal" to which the learned sentencing judge replied "Yes".  There may have been an error in transcription or in the Crown prosecutor's reading of the question, but the assertion by the Crown prosecutor that .1 of a gram was a street level deal was not contested by the defence.  There is however a double error inherent in the question because only five of the nine packages could be said to contain approximately .1 of a gram.  Certainly none of them contains anything like 1.1 grams.  The difficulty created by this was not adverted to by anyone during the hearing or on appeal.

8. The Crown prosecutor also informed the court that at a wholesale level the total of the heroin found would have cost in the order of $2,000 to $3,000, and that "if it was sold in those point one packages it would have realised somewhere between $8,000  and $10,000."

9. Having stated that the above information was "the extent of the information available to the Crown" the learned Crown prosecutor submitted that the court would be "perfectly entitled to draw an inference beyond a reasonable doubt that this was a commercial operation".

10. It was common ground that the applicant and her husband were heroin addicts.  In particular, a report from Dr Heather Jenkins revealed that the applicant had been a patient of hers since July 1992.  Apart from her heroin addiction (substance abuse) the applicant's medical problems included hepatitis C, hepatitis B, alcohol abuse, chronic anaemia, an eating disorder and depression.  Dr Jenkins noted that the applicant had been admitted to Cairns Base Hospital Psychiatric Unit after a suicide attempt (apparently in 1997) and had subsequently commenced a methadone program but had been "off and on again" on several occasions.  She noted that "she continues to use heroin on a regular basis". Defence counsel recounted that the applicant and her husband had both had a drug problem for a considerable time.  The pattern was one of periods when they both tried to give it up or when one tried to do so, but they had always fallen back into their old ways again.

11. The applicant is now 38 years old.  She has no previous convictions, even for drug offences.  She was born in Italy and her father was described as a successful businessman running an emporium and selling fashion clothes.  She was introduced to drugs in that country at the age of 18.  She came to Australia in 1991 and had periods of employment including a substantial period as a diving instructor and she managed to stop taking drugs for five years.  She also acted from time to time as an interpreter and at other times was in receipt of social security.

12. Her husband who comes from New Zealand has a wealthy father in that country and money is sent to him on a regular basis by his father.

13. My initial impression of the evidence was that it is by no means incredible or unlikely that the heroin of which the applicant was found in possession was possessed for her own use and that of her husband.  It was not suggested that an intention to share the drug with her husband would involve any commercial purpose.  Indeed, the drug had been purchased with her husband's funds, and it would seem to have been a joint possession for joint purposes.  The question is whether that purpose was for their own use or whether it included sale to others.

14. No evidence was provided of the daily or weekly heroin consumption of the applicant and her husband from which some estimate could be made of whether such a quantity might be consumed within a period that was consistent with storage for their own purposes.  Certainly the quantity seems large but the court was not told of the known ranges of consumption by addicts.  Neither was there sufficient evidence that the economic circumstances of these people were such that they could not have afforded to store a commodity which would have cost them between $2,000 and $3,000.  There is no evidence of finding money in the house or on the applicant's person, or of any street activity, or of the use of any cutting agent.  It therefore becomes crucial to examine whether the applicant's packaging of the heroin and the other surrounding circumstances are consistent with her self-serving assertion that she was packaging it so that "I don't use it all in once".

15. In this respect the details revealed by analysis are instructive.  I have converted the analyst's certificate in order to relate the results to each item analysed.

16. The syringes and their contents can be put to one side.  They are consistent with being intended for use by the applicant and her husband, although counsel for the Crown submitted it was also consistent with the extraction of a "taste" by a dealer.

17. The first thing that one notes about the balance of the samples is that they are all consistent with having come from the rock in the condom, except for the two packets found inside the applicant's bra.  All the samples are around the 49 per cent purity mark other than those in the bra which are around the 77 per cent mark.  These obviously could not have been cut from the rock, and no other source was found within the house from which they could have been obtained.

18. The nine packets on the table, which the applicant had undoubtedly prepared, have contents varying from .093 grams to .507 grams.  Closer examination shows that there are five packages of between .093 and .102 grams, that is to say each is very close to .1 of a gram; and four packages between .485 and .505 grams, that is to say each is very close to .5 of a gram.  It is to be noted that the .1 gram packages are of virtually the same weight as each of the two packages found in the applicant's bra.  As earlier observed it was not contested that .1 of a gram is a street level deal.  Although further evidence was lacking, I am prepared to infer that .5 of a gram could also be a marketable street commodity.

19. The submission for the applicant is that this was all for her own use or that of her husband, and that she was cutting down this substantial quantity into packages so that they did not use it all at once.  On the above facts however this does not seem feasible.  The breaking down of this substantial quantity into carefully measured packages of identifiable and vendible quantities goes strongly against the theory of home use.  If there was a reason for preserving the heroin in those specifically different quantities for the applicant's own use it is not immediately apparent, and defence counsel who wished that inference be drawn should in my view have called evidence to support it.

20. The further fact that the applicant was carrying in her bra two other vendible packages of heroin obtained from some other source only adds strength to a conclusion of commercial purpose.

21. As I see it, on the facts presented to the court the prosecution surmounted both the evidential and persuasive onus of proving commercial purpose.  By the time the above evidence had been received, the persuasive onus of showing that these facts should be otherwise interpreted had shifted to the defence.

22. It is true that from an early stage the learned sentencing judge expressed strong views in favour of the inference sought to be drawn by the prosecution.  That however should not have dissuaded experienced counsel for the applicant.  The judge had made it clear that he did not accept the suggestion that the heroin was for personal use.  It was incumbent upon counsel for the applicant at that stage to call evidence on the point if that persuasion was to be altered.

23. I do not see this case as one where the defence had the burden of proving a fact of mitigation of sentence on the balance of probabilities according to Morrison.  Rather it is a case where the onus lay on the prosecution at all times to prove beyond reasonable doubt a fact adverse to the offender that would result in a heavier sentence.  The prosecution did so to the extent that its persuasive burden was satisfied, and no adequate attempt was made by the defence to displace it.

24. The application should be refused.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C A  No 74 of 1999

Townsville

THE QUEEN

v

DANIELA SETTERS

(Applicant)

REASONS FOR JUDGMENT - CULLINANE J

Judgment delivered 24 August 1999

1. I have had the opportunity to read the reasons of the President and those of Thomas JA.  I agree with the order proposed and the reasons of each.

2. Like the other members of the Court, I am of the view that the facts placed before the learned sentencing judge of the circumstances of the applicant's possession of the heroin, particularly its packaging, were sufficient in the absence of evidence which might suggest otherwise to justify the finding to the necessary standard that the possession had a commercial character.

3. The application should be refused.