The law in Western Australia on drug offences is Misuse of Drug Act WA 1981 (amended in 2017).
There are various types of drug offences; common offences include: trafficking, supply and possession.
There are two level of drugs possession offenses:
-Simple possession of prohibited drugs (Section 6 (2))
-Possession with intent to sell or supply – Section 6(1)(a)
A “prohibited drug” is a
drug of addiction,
a specified drug, or
any drug listed in Schedule I of the Misuse of Drugs Act.
The rather extensive list includes cannabis, cocaine, methyl amphetamine, heroin.
“Possession” includes control or have dominion over and to have the order or disposition of” However, knowledge of the existence of the substance in question is necessary before it can be said that the substance is in the accused possession.
In many cases, accused persons dispute having knowledge of the drug that is found within his premises or in receptacles under his custody. This might succeed if the court accept that there were indeed unaware of the nature of the substance or their existence found within their custody.
SIMPLE POSSESSION
Section 6(2) of the Misuse of Drugs Act: A person who has in his possession or uses a prohibited drug commits a simple offence.
For simple possession to be established, there must be at least knowledge of the existence of the drug – intention to possess. A person cannot be found to possess a prohibited drug if there was no intention to to possess the drug. A common defense is that the accused was not aware of the existence of the drug in his premises or held within any receptacle that he has possession of – usually tucked away somewhere not immediately visible.
The maximum penalty for simple possession is a fine not exceeding $2,000 or a term of imprisonment not exceeding 2 years or both.
POSSESSION WITH INTENT OFFENSES
The more serious offense (more serious than simple possession) is when possession is not just for personal consumption but for distribution.
A person who:
(a) with intent to sell or supply it to another, has in his possession;
(b) manufactures or prepares; and
(c) sells or supplies, or offers to sell or supply, to another,
a prohibited drug commits a crime (except where authorised under the Poisons Act 1964).
This is a commonly prosecuted drug charge in Western Australian Courts is possession of a with intent to sell or supply.
Where the quantity seized exceeds a certain amount, the possession is deemed to be with intent to sell or supply – e.g.
– Heroin: 2gm
– Amphetamine: 2gm
– Cannabis: 100gm
– Cocaine: 2gm
– Methylamphetamine: 2gm
– Cannabis – 100 grams;
– Cocaine – 2 grams;
– Ecstasy (MDMA) – 2 grams;
– Heroin – 2 grams;
– LSD – 0.002 grams.
It is then for the accused person to argue that notwithstanding the quantity, the drugs are meant for personal consumption.
If the quantity seized is less than the stipulated quantity in Schedule III of the Act, the case can still be dealt with summarily in the Magistrates Court where the punishment is lighter than being tried under indictment in the District Court.
The following is the threshold quantity for the magistrate to have jurisdiction
– Amphetamine: 4gm
– Cannabis: 500gm
– Cocaine: 4gm
– Methylamphetamine: 4gm
PUNISHMENT
If tried in the Magistrates Court, maximum penalty – fine not exceeding $5,000 or imprisonment up to 4 years, or both.
If tried in the District Court, maximum penalty – fine not exceeding $100,000 or imprisonment for up to 25 years or both.
On conviction where the quantity threshold exceeds schedule II (Serious drug offense), the Court can declare the drug offender to be a “drug trafficker” , and the implication is that the property of the convicted person can be confiscated, and this includes any property which have been given away to other people.
The court may also make the declaration of drug trafficker even if the offense is not serious but there are prior drug offenses conviction.
Most prosecutions are based on possession – this is when accused persons premises are searched and found with drugs. They could be found with weighing scales, unused clip seal bags and stash of cash (suggestive of proceeds from drug dealing). Phone contents will also be searched with records of text communications evidencing drug dealings. All these help to strengthen the prosecution case that the possession is not merely for personal consumption but rather with intent to supply. Possession of drugs with intent to supply quite invariably attract immediate imprisonment due the key consideration of “general and personal deterrence” : general to protect the public from the ills of drug misuse and personal to discourage from re offending.
Below discussion of two cases demonstrate the contrast between two contrasting scenarios:
a. Relatively light sentence of 9 months imprisonment for methyl 4.04 g – Croxford v The State of Western Australia, [2021] WASCA 159
b. Upper range at 14 years imprisonment for possession of methyl wiss 3892.96 g at 74%81% purity.
Croxford v The State of Western Australia [2021] WASCA 159
Offense : found to be in possession of methyl 4.04 g. during a police search of car that accused was in. Punishment : 9 months imprisonment.
Personal circumstances
43 yrs at time offending. 44 yrs at time sentencing. Physical and mental impairments – asthma; experiences debilitating pain and stiffness as a result of rheumatoid arthritis and depression.
Finding by the court – low-level drug dealing was not motivated by the desire to make a profit. Of the 4.04 g she possessed, 3.1 g was being temporarily held by her … The balance would have been partly used by the appellant and partly sold at cost price to friends. … Her mental disabilities reduced her moral culpability. … The appellant’s mental and physical disabilities, including brain damage, have consequences which make imp more difficult to her.
Sentence -;9 mths imprisonment.
Trainor v The State of Western Australia [2021] WASCA 36
Offense and sentence –
Count 1: possession of methyl 3892.96 g at 74%81% purity. Count 2: possession of unlawfully obtained property ($16,655 cash).
Count 1: 14 yrs imprisonment (concurrent). Count 2: 16 mths imprisonment (concurrent).
Total effective sentence 14 yrs imprisonment.
Personal circumstances:
Consistent employment history; previously working well-paid position; new work significantly lower remuneration; good work ethos; history of volunteer work.. Wife in poor health. Experiencing financial pressures at time offending.
Court finding : The sentencing judge found the appellant had possession of the drugs for the purpose of passing them on further down the chain of distribution; the seriousness of the offending was significantly aggravated by the fact he was involved in the offending for commercial gain.
Sentence : 14 years imprisonment
The following discussion by the court in Trainor case is instructive for serious drug trafficking cases. It also explains why 14 years imprisonment for 3892.96 methyl is not unreasonable considering that Parliament in 2017 enhanced the maximum imprisonment term from 25 years to life because of the need for stronger deterrence for the higher level drug dealers.
Excerpts from the Trainor judgement :
There are a number of decisions of this court reviewing the patterns of sentencing for offences involving quantities of methylamphetamine of 1 kg or more in cases involving the previous maximum penalty of 25 years’ imprisonment. [Note that the amendment in 2017 to the law has revised the maximum punishment upward to life]
For example, in Zanon v The State of Western Australia, McLure P said as follows:[38]
The court’s attention was drawn to a number of sentence appeals in broadly comparable cases including Kitis v The State of Western Australia [2013] WASCA 34 (total quantity of 5 kg of methylamphetamine; 22% ‑ 69% purity; late plea of guilty; 12 years imprisonment); Ozan v The State of Western Australia [2013] WASCA 27 (total quantity of 7.6 kg; late plea of guilty; 17% ‑ 69% purity; total sentence of 14 years); Neumann v The State of Western Australia [2013] WASCA 70 (total of 1.27 kg of methylamphetamine; late guilty plea; 15 years); Penney v The State of Western Australia [2011] WASCA 71 (total of 9 kg of which 5.76 kg was methylamphetamine at 10% ‑ 12% purity; early guilty plea; 13 years, not the principal); Mikulic v The State of Western Australia [2011] WASCA 127 (total of around 15 kg of primarily ecstasy; purity between 23% ‑ 80%; late guilty plea; cooperation; 12 years imprisonment; Milenkovski v The State of Western Australia [2014] WASCA 48 (a total of 7.68 kg of methylamphetamine; 2.7 kg at 17% ‑ 19% purity, 5 kg at 53% ‑ 69% purity; 17 years imprisonment).
There is also a cluster of cases in which the total quantity of prohibited drugs of around 1 kg attracted sentences of between 9 years and 12 years imprisonment (including Fragomeni v The State of Western Australia [2011] WASCA 67; Basilio v The State of Western Australia [2010] WASCA 202; Halmi v The State of Western Australia [2013] WASCA 229; Sathitpittayayudh v The State of Western Australia [2015] WASCA 152; Seeto v The State of Western Australia [2014] WASCA 221).
Had the appellant in this case been sentenced under the previous regime in which the maximum penalty was 25 years, the sentence of 14 years would undoubtedly have been at least high and may well have justified a conclusion that it was manifestly excessive. However, whether such a conclusion can be draw in the present case must take account of the increase in the maximum penalty.
The increase in maximum penalty and its significance
The maximum penalty for the offence of possessing a trafficable quantity (that is, more than 28 g[41]) of methylamphetamine with intent to sell or supply[42] is life imprisonment.[43] That maximum penalty increased from the previous maximum penalty of 25 years’ imprisonment as a result of amendments made by the Misuse of Drugs Amendment (Methylamphetamine Offences) Act 2017 (WA) (Amendment Act).
In the second reading speech for the Amendment Act, the Minister for Police, Mrs M H Roberts MLA, explained the rationale for the amendments made by the Bill as follows:[44]
“The effects of methamphetamine on our community are just devastating. It has to stop. The community quite rightly expects tough action against methamphetamine dealers and traffickers. Our government will give police and the judiciary the tools they need to prevent and deter this trade.
This legislation implements our commitment to reduce the supply of methamphetamine by increasing penalties for drug traffickers. The penalties will be some of the toughest in the country. The bill targets methamphetamine dealers, manufacturers and suppliers further up the drug supply chain who feed lower-end street dealers and addicts. Specifically, the Misuse of Drugs Act 1981 is being amended to increase the maximum sentence of imprisonment to a life penalty. The amendments provide that a drug dealer who is caught with 28 or more grams of methamphetamine will now be subject to a maximum penalty of life imprisonment. This is an increase on the current maximum penalty of 25 years’ imprisonment.
The devastating impact of methamphetamine must end. Our families and our communities cannot bear it any longer. This bill sends a strong message to drug dealers and traffickers – that they will feel the full force of the law. If they traffic methamphetamine in Western Australia, they will now face the prospect of a life sentence.
The maximum penalty for an offence demonstrates Parliament’s view of the gravity of the offence. An increase in the maximum penalty for an offence is an indication that the Parliament regards the offence as being of a more serious kind than was previously the case. The maximum penalty of life imprisonment demonstrates that Parliament now regards offending of the kind the subject of ground 1 as being of the most serious kind.[45]
Having regard to:
(1) the maximum penalty of life imprisonment;
(2) the seriousness of the offending the subject of count 1, and the place occupied by the appellant’s offending in the scale of seriousness of offences of that kind;
(3) the general guidance provided by sentences imposed for broadly similar offending prior to, and since, the increase in the maximum penalty effected by the Amendment Act;
(4) the need for general deterrence;
(5) the appellant’s plea of guilty for which he was afforded a 25% discount under s 9AA of the Sentencing Act;
(6) the appellant’s personal circumstances; and
(7) all relevant sentencing factors and principles,
We are not persuaded that the sentence of 14 years’ imprisonment imposed by the sentencing judge in respect of count 1 was unreasonable or plainly unjust. Implied error has not been established.