R v Phan[2008] QCA 258

SUPREME COURT OF QUEENSLAND 

1. KEANE JA:  On 13 May 2008 the appellant was convicted upon the verdict of a jury of one count of possessing a dangerous drug, the quantity of which exceeded 2.0 grams in contravention of s 9(b) of the Drugs Misuse Act 1986 (Qld) ("the Act").  The jury acquitted the appellant of one count of possessing a set of scales, a pair of scissors and a quantity of dimethyl sulfone for use in connection with the commission of the crime of possessing a dangerous drug.  The appellant was also acquitted of one count of possessing a set of scales and a quantity of empty capsules for use in connection with the commission of the crime of possessing a dangerous drug.

2. On 15 May 2008 the appellant was sentenced to three years imprisonment with a parole release date of 13 November 2009, ie after serving 18 months of that sentence.

3. The appellant seeks to have his conviction set aside on the following grounds:

"1.The verdict is unreasonable and cannot be supported having regard to the whole of the evidence.

2. The learned trial judge erred in failing to direct the jury as to the meaning and application of the phrases 'a dangerous drug' and 'the drug' as used in s 129(1)(c) of the Drugs Misuse Act."

4. The appellant also seeks leave to appeal against the severity of his sentence on the ground that it is manifestly excessive.

The evidence at trial

5. On 19 July 2006 police raided a house owned and occupied by the appellant. On searching the premises, the police found a quantity of heroin in a concealed compartment in a wardrobe which was located in what was described as the computer room of the house. There were three packages wrapped within a single package. In two of the smaller packages was 137.9 grams of powder containing 19.9 grams of heroin. In the third of the smaller packages was a quantity of dimethyl sulfone, an agent used to cut heroin. It was common ground that the heroin was not packaged in a way that facilitated easy access to it.

6. Police also found a set of scales in the concealed compartment of the wardrobe. Scissors and another set of scales were found on a shelf in the computer room. The scissors were found to have traces of heroin on them.

7. The empty capsules referred to in the third count on the indictment were found in a bathroom drawer.

8. The appellant was at home at the time of the police raid. He made no admissions in relation to the contents of the hidden compartment in the wardrobe. He told police that he owned the scales found on the shelf and the empty capsules found in the bathroom.

9. The appellant gave evidence at trial that he lived in the house with his brother and another man. He said that he knew of the concealed compartment in the wardrobe, but that he had not kept anything in it for more than a year.

10. The appellant said that his brother was a heroin addict who had been living with him for about two weeks prior to the police raid. He said that he had caught his brother injecting himself with heroin on one occasion, and that he remonstrated with his brother telling him that if he did it again he would have to leave the house. The appellant said that he had no idea who might have put the heroin in the secret compartment, but that his brother knew of the concealed compartment in the wardrobe. In cross-examination, the appellant swore that he did not know the heroin was there.

The trial judge's directions in relation to possession of the heroin

11. In relation to possession of the heroin, the learned trial judge directed the jury as follows in relation to the concept of possession under the general law:

"Under the legislation of Queensland, it is a crime unlawfully to have possession of a dangerous drug. Heroin is a dangerous drug for the purpose of the Act. If the defendant had possession of that drug, then that possession was not lawful. The central issue in this case therefore concerns possession, and the law is that possession denotes or requires a physical control or custody of a thing with knowledge that you have it in your control or custody. You don't for the purposes of the law, possess a thing unless you know you have it, or unless you can actually exercise some power over it. Now, you might remember the example that Mr Seaholme gave of someone slipping something into the pocket of a jacket you're wearing. Now, you might have it in your clothing, but for the purposes of the law, unless you know it's there, you don't possess it. So, if for example, there was a charge that someone possessed a drug in a car, and there was evidence that someone else put the drug in the car, and the owner of the car didn't know about it, then that wouldn't be possession.

It's for the prosecution to prove, once again beyond reasonable doubt, the defendant's knowledge of the presence in his house of the object which you will see in exhibit 9, one of the photos, which are the photographs of the wrapped parcel. Now, you saw the photographs yesterday, where each separate photo showed a further stage of unwrapping, it was wrapped in some tissue paper or toilet paper, then there were some balloons and plastic and so on. Now, it's not necessary, and this is important to recall, it's not necessary for the prosecution to establish that the defendant knew that the substance was heroin. All that the prosecution has to do is show that the defendant had this object in his possession. The prosecution does not bear the burden of showing that the defendant knew the nature of the substance, because it's enough for the Crown to prove, directly or by inference, that the defendant knowingly possessed the thing or substance which was in fact a dangerous drug.

If you're satisfied beyond reasonable doubt that the defendant had the requisite degree of control or custody to constitute possession, he is guilty, unless he has proved to you that he then believed honestly and reasonably that the parcel did not contain a dangerous drug, well, he said he didn't know about the parcel, so he can't say that. The standard of proof concerning that issue is not proof beyond reasonable doubt, that's the defendant's proof."

12. The learned trial judge then directed the jury in relation to the operation of s 129(1)(c) of the Act:

"There is though an important part of the Drugs Misuse Act which you have to deal with, and it provides this: 'Proof that a dangerous drug was at the material time in or on a place of which the defendant was the occupier or concerned in the management of control of the place is conclusive evidence that the drug was then in the person's possession, unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place.' So, I'll go through that again. If the prosecution proves to you beyond a reasonable doubt, that the dangerous drug was, on 17 July 2006, in the house of which the defendant was the occupier or concerned in its management, then that is conclusive evidence that the drug was in the defendant's possession, unless the defendant shows you that he didn't know and he had no reason to suspect the drug was in that place.

The effect of the provision is that if the prosecution satisfies you beyond reasonable doubt that the defendant was the occupier or the person concerned with the management of that place where the drugs were found, then the law says he had possession of those drugs, and will be guilty of the offence of possession unless he satisfies you that he didn't know of or have reason to suspect the presence of the drugs.

So, the prosecution has to prove beyond reasonable doubt that he was the occupier and that the drugs were found there - that's the high standard of proof. The defendant in order to escape - escape's the wrong word - in order to demonstrate that he's not guilty, only has to show you on the balance of probabilities, the lower standard of proof, that it's more probable than not that he neither knew nor had reason to suspect the presence of the drugs."

13. His Honour then summarised the issue for the jury in relation to the charge of possession of the heroin:

"So, it's for you to decide if you are satisfied beyond a reasonable doubt by the evidence of the defendant's relationship with the place, where the drugs were found, his activities that are alleged in relation to the house, the extent of control, which is said to have been exercised by him over it, whether he is someone to whom the section applies. Whether he's an occupier. If so, if you find that he's an occupier, and you accept the police evidence that the drug was found there, you will convict him unless you are persuaded that it is more probable than not, that he neither knew of nor suspected the presence of the drugs in or at that place.

If you are persuaded of that, you will find him not guilty of the offence of possession of the dangerous drug heroin; that was Count 1. That's the charge of possession of heroin."

14. No redirection was sought by counsel for either side in relation to these aspects of the learned trial judge's directions to the jury.

The appellant's arguments on appeal

15. Section 129(1) of the Act provides as follows:

"Evidentiary provisions

(1)In respect of a charge against a person of having committed an offence defined in part 2–

(a)it is not necessary to particularise the dangerous drug in respect of which the offence is alleged to have been committed;

(b)that person shall be liable to be convicted as charged notwithstanding that the identity of the dangerous drug to which the charge relates is not proved to the satisfaction of the court that hears the charge if the court is satisfied that the thing to which the charge relates was at the material time a dangerous drug;

(c)proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place;

(d)the operation of the Criminal Code, section 24 is excluded unless that person shows an honest and reasonable belief in the existence of any state of things material to the charge;

(e)the burden of proving any authorisation to do any act or make any omission lies on that person."

16. On the appellant's behalf, it is argued in this Court that the learned trial judge should have directed the jury that if they were satisfied that the appellant did not know or have reason to suspect that the particular package of heroin found in the concealed compartment of the wardrobe was in his house, then s 129(1)(c) of the Act did not operate to deem the heroin to be in the appellant's possession. In this regard, it is argued that, properly construed, s 129(1)(c) of the Act, when it speaks of "the drug" for the second time, is speaking of the particular package of the drug which is proved to be in a house rather than any dangerous drug or a dangerous drug of the kind located in the house.

17. On the appellant's behalf, it is said that the verdict of acquittal on count 2 shows that the jury were not satisfied beyond reasonable doubt that the appellant actually knew of the presence of the parcel in the secret compartment. Accordingly, so it is said, it must be the case that the jury convicted the appellant of possessing the heroin in the secret compartment in the wardrobe only on the basis that they were not satisfied that he had no reason to suspect that the heroin, in some quantity and in some location, was in the house.

18. On this footing, the appellant argues that, while the jury might reasonably have concluded that he had reason to suspect that his brother had some heroin in the house, they could not reasonably have concluded on the balance of probabilities that he had reason to suspect the existence of the particular parcel found by the police.

19. Alternatively, the appellant argues that, if the reference to "the drug" where it is used for the second time in s 129(1)(c) of the Act is properly construed as referring to any quantity of heroin proved to have been in the house, that construction does not support the conviction of the appellant insofar as it involves the possession of a quantity of heroin in excess of 2.0 grams.

20. It should be noted that neither of these arguments was advanced to the learned trial judge. It is difficult to see how the failure of the appellant's counsel at trial to advance these arguments could sensibly be attributed to a forensic decision on the part of counsel to "take his chances" with the directions given by the learned trial judge as opposed to a failure to appreciate that the arguments were available. Accordingly, the failure of the appellant's trial counsel to raise these arguments below does not mean that this Court should decline to entertain them and give effect to them if they are found to be meritorious.^[1]

Discussion

21. The material terms of s 9 of the Act show that the crime of unlawful possession of a dangerous drug may be committed by virtue of the possession of any quantity of a dangerous drug, but that the sentence which may be imposed by way of penalty for that possession will vary with the nature and quantity of the drug. Section 9 provides relevantly:

"A person who unlawfully has possession of a dangerous drug is guilty of a crime.

Maximum penalty–

(a) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing–25 years imprisonment;

(b) if the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 and the quantity of the thing is of or exceeds the quantity specified in the Drugs Misuse Regulation 1987, schedule 3 but is less than the quantity specified in the Drugs Misuse Regulation 1987, schedule 4 in respect of that thing and the person convicted–

(i) satisfies the judge … that when the person committed the offence the person was a drug dependant person–20 years imprisonment;

(ii) does not so satisfy the judge … 25 years imprisonment;

…

(d)in any other case where the dangerous drug is a thing specified in the Drugs Misuse Regulation 1987, schedule 1 or 2–15 years imprisonment."

22. Section 129(1)(c) of the Act serves to facilitate proof of possession of a dangerous drug in contravention of s 9 of the Act by relieving the Crown of the onus of proving the mental element associated with the concept of possession under the general law.^[2]  Thus, in Tabe v The Queen,^[3] Callinan and Heydon JJ explained the operation of s 129(1)(c) of the Act, which then appeared in the Act as s 57(c).  Their Honours said:

"Section 57(c) is concerned with possession and deals expressly with the relevance of knowledge. To be concerned in the management or control of a place where the drug is located is, pursuant to this section, to be in 'possession' of the drug. So much appears in terms in the first part of para (c) which then goes on to provide that unless an accused show that he or she neither 'knew nor had reason to suspect that the drug was in or on that place', he or she will be regarded as being in possession. If knowledge were a necessary element of the charge that the prosecution was bound to prove, then the qualification in s 57(c) requiring the accused to show that he or she lacked the relevant knowledge, or had no reason to suspect that the drug was in or on that place, would be unnecessary and anomalous. Section 57(c) relieves the prosecution of the burden of proving knowledge. It is not only to be presumed, it is also to be conclusively presumed unless the accused demonstrate absence of knowledge, or, of reason to suspect. If an obligation to prove knowledge on the part of the prosecution were to be implied, s 57(c) would need to be read as if it contained a qualification to that effect. It would need to have implied in it after the words '... in the person's possession' such words, for example, as 'if the prosecution prove that the person knew that the drug was located at that place'. The effect of such a qualification would be to render meaningless, or at least to make contradictory, the express words which actually appear there 'unless the person shows that he or she then neither knew nor had reason to suspect ...'. A further purpose of s 57(c) is no doubt to make it clear that the onus is reversed in those cases to which it applies, being cases in which the extended meaning of possession operates."^[4]

23. Section 129(1)(c) of the Act is concerned to facilitate proof of possession of a thing by an accused person. It is not concerned to facilitate proof of possession of any specific kind or quantity of a dangerous drug. Rather, it proceeds on the footing that the nature and the amount of the thing alleged to be in the possession of the accused, because it is in his or her management or control, will be proved in the ordinary way without reliance upon s 129. When s 129(1)(c) speaks of "the drug", it is necessarily referring to the thing deemed to be in the possession of the accused by the operation of s 129(1)(c) unless that operation is displaced by proof that the accused neither knew nor had reason to suspect that the drug was "in or on that place".

24. By virtue of s 129(1)(c) of the Act, an accused person in whose house a thing, being a dangerous drug of any kind and in any quantity, is found is deemed to be in possession of the thing unless the accused can show that he or she did not know or have reason to believe that the thing was in his or her house. It has long been settled that a contravention of s 9 of the Act may be established by proof that an accused person is in possession of a thing that is proved to be a dangerous drug, and that it is not necessary for the Crown to prove that the accused actually knew that the thing was a dangerous drug.^[5]  A person can be guilty of an offence against s 9 of the Act even though the offender does not know that the thing in his or her possession is a dangerous drug, it being sufficient that the thing is, in fact, a dangerous drug.  That being so, it is hardly surprising that s 129(1)(c), which is intended to facilitate proof of a contravention of s 9 of the Act, should operate to deem a person to be in possession of a thing, which is, in fact, a dangerous drug, even though that person does not know of the particular nature and quantity of dangerous drug.  Indeed, it would be incongruous if s 129(1)(c) did not have that effect. 

25. The circumstance that s 129(1)(c) uses the phrase "reason to suspect" to indicate the extent of the burden cast on an accused person is itself an indication that the state of mind required to be proved is not confined to a particular kind of dangerous drug or a particular parcel of a dangerous drug. Section 129(1)(c) does not allow an accused person to avoid the creation of the irrebuttable presumption of possession by showing merely that he or she had no reason to suspect that the thing, being a dangerous drug, found in his or her house was a dangerous drug of a particular kind or a particular quantity, just as such a person cannot avoid the presumption by showing that he or she had no reason to suspect that the thing was a dangerous drug packaged in a particular way or located in a particular place.

26. Accordingly, the appellant could avoid the operation of the irrebuttable presumption of "possession of a dangerous drug" in this case only if he showed that he had no reason to suspect that a thing, being a dangerous drug of any kind or quantity, was in or on the place of which the appellant had management or control. The directions by the learned trial judge which proceeded on this footing were in conformity with the proper construction of s 129(1)(c) of the Act.

27. The jury were clearly entitled to resolve that issue against the appellant. Even on the appellant's own evidence, he had reason to suspect the presence of a dangerous drug, namely heroin, in some quantity in his house because of his knowledge of his brother's use of heroin while he was living there. There was no suggestion that, after reproaching his brother for using heroin in the house, the appellant made any search of the house, either to find and remove the reason to suspect that heroin was in the house, or to ensure that there was no heroin in his house.

Sentence

28. The appellant was 29 years old at the time of the offence and 31 years of age at the date of his sentence. He has a reasonably good work record.

29. The appellant had previously been fined for possession of a dangerous drug in 1999 and 2004.

30. The learned sentencing judge was not satisfied on the balance of probabilities that the appellant knew that the heroin was in the wardrobe, but sentenced him on the basis that he had reason to suspect the presence of heroin in his house because of his knowledge of his brother's use of the drug in the house.

31. His Honour also declined to find that the appellant's possession of the heroin was attended with any commercial purpose on his part. His Honour proceeded to sentence the appellant on the view of the evidence most favourable to him.

32. At the sentence, the appellant's then counsel had conceded that three years imprisonment was an appropriate sentence in the circumstances. It is now said on the appellant's behalf that there was no discernible basis for that concession having regard to the circumstances of the appellant's offending.

33. The appellant was criminally responsible for the possession of a relatively large amount of heroin. The decisions of this Court in R v Nguyen & Truong,^[6] R v Morrison^[7] and R v McAnally^[8] would support a sentence in the range of five to six years imprisonment where commercial amounts of heroin similar to that found in the present case were shown to be in the knowing possession of the offender. 

34. The sentence imposed by the learned sentencing judge resulted in the imposition of a sentence which was of the order of half that which could have been expected to be imposed had the appellant been shown to be knowingly in possession of the dangerous drug found in his house. The approach taken by the learned sentencing judge in this regard can be said to go some way towards the necessary recognition that the offending for which the appellant was to be sentenced was very much one of the less serious examples of this offence. There is force, however, in the criticism advanced on behalf of the appellant that the sentence which was imposed is not readily understandable in terms of the purposes of punishment recognised by the law.

35. It must, I think, be acknowledged that the sentencing of the appellant could not proceed on the basis that the appellant was knowingly in possession of any particular quantity of heroin, much less the quantity actually found on his premises. The appellant could not be sentenced on the basis that he had any commercial purpose in relation to the heroin or even that he possessed the heroin for his personal use. In terms of the subjective criminality of the appellant's conduct, and the consequent need for personal deterrence, the highest that the case can be put against him is that he failed to take steps to ensure that any heroin which his brother had in the house was discovered and thrown away. In terms of the desirability of imposing a sentence which is apt to provide for general deterrence and the protection of the community, the appellant's offending could not be regarded as anything more serious than a failure to exercise greater diligence to ensure that his brother was not keeping drugs for his personal use in the premises.

36. I have come to the conclusion that, seen in this light, the sentence imposed on the appellant was manifestly excessive as a response to the needs of personal or general deterrence or the protection of the community.

37. In my respectful opinion, the legitimate ends of the sentencing process can be met in this case by suspending the three year sentence of imprisonment after he has served 112 days, ie as and from 5 September 2008.

Conclusion and orders

38. The arguments advanced by the appellant in relation to the proper construction of s 129(1)(c) of the Act must be rejected.  The appeal against conviction should be dismissed.

39. The sentence imposed on the appellant was manifestly excessive. The application for leave to appeal against sentence should be granted, and the appeal should be allowed, but only to the extent of deleting the parole release date of 13 November 2009 and, in lieu thereof, order that the sentence be suspended after the appellant has served 112 days for an operative period of three years.

40. MUIR JA:  I agree with the reasons of Keane JA and with the orders he proposes.

41. DOUGLAS J:  I agree also with the reasons of Keane JA and with the orders he proposes.