The Queen v Rebecca Katherine Krutsky [1998] ACTSC 188 (9 April 1998)

  
  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MILES CJ, GALLOP AND HIGGINS JJ

  

  

   CRIMINAL LAW - sale or supply of a prohibited substance to a person under
the age of 18 years - whether the elements of the
offence charged include an
element that the person had not attained the age of 18 years and knowledge on
the part of the accused
that the person was a person who had not attained the
age of 18 years - both questions answered "No".

  

   Supreme Court Act 1933 (ACT), s13(3)

   Drugs of Dependence Act 1989 (ACT), s164

   Drugs of Dependence Regulations 1989 (ACT), Reg 5, 6, Schedule 2

   Magistrates Court Act (ACT), s90A

   Interpretation Act
1967, s11

  

   R v Reynhoudt [1962] HCA 23;  (1962) 107 CLR 381 referred

   Kingswell v The Queen (1985) 159 CLR 265 discussed, distinguished, applied

   The Queen v Meaton
[1986] HCA 27;  (1986) 160 CLR 359 referred

   Joshua v Thomson (1994) 119 FLR 296 referred

  

  

   CANBERRA, 4 July 1997 (hearing), 9 April
1998 (decision)

   #DATE 09:04:1998

  

   Appearances

   Counsel for the Appellant: Mr T Buddin SC

   Instructing Solicitors:
Director of Public Prosecutions

  

   Counsel for the Respondent: Mr T O'Donnell

   Instructing Solicitors: ACT Legal Aid Office

  

  

   Order:

   THE COURT ANSWERS THE QUESTIONS: "Whether the elements of the offence
charged comprise, in addition to a participation
in the sale or supply of a
prohibited substance:

   (1) an element that the person referred to in s164(3) was a person who had
not
attained the age of 18 years;

   (2) a further element of knowledge on the part of the accused that the
person was a person who
had not attained the age of 18 years."

   (1) No. (2) No.

  

  

   MILES CJ:

  

   1. I agree with the judgment of Gallop J
and have nothing to add.

  

   GALLOP J:

   1. This is a matter referred to the Full Court of the Supreme Court,
pursuant to s13(3) of the Supreme Court Act 1933 (ACT).

   2. On 14 November 1996 the accused pleaded guilty in the Magistrates Court
to an offence against s164(3)(b) of the Drugs of Dependence Act 1989 (ACT).
That section reads:

  

  

   " (3) A person shall not - .... (b) participate in the sale or supply of a
prohibited substance
to any person; .... Penalty (a) where the quantity of the
substance to which the offence relates is a commercial quantity - imprisonment
for life; (b) where the quantity of the substance to which the offence relates
is a traffickable quantity but not a commercial quantity
- $100,000 or
imprisonment for 25 years, or both; (c) where the quantity of the substance to
which the offence relates is less than
a traffickable quantity, and is sold or
supplied to a person who has not attained the age of 18 years - $100,000 or
imprisonment
for 25 years, or both; and (d) in any other case - $10,000 or
imprisonment for 5 years, or both."

   3. For the purposes of this
matter, the appropriate penalty is in
sub-paragraph (c). The offence was set out in the information in the following
terms:

   "That
she, in the Australian Capital Territory, on the 24th May, 1996, did
participate in the sale of a prohibited substance, to wit, heroin,
to another
person, namely Timothy Cushing, being a person under the age of 18 years."

  

   4. The traffickable quantity of heroin
is two grams as prescribed by Drugs
of Dependence Regulations , Regulations 5 and 6, Schedule 2.

   5. The accused was committed
for sentence to this Court pursuant to s90A of
the Magistrates Court Act (ACT). She appeared before me on 13 February 1997
and adhered
to her plea of guilty in the Magistrates Court. In addition, she
asked that another offence set out on a Schedule be taken into account.

  

   6. The further relevant provisions in s164 are subsections (5), (7) and
(9). Those subsections read as follows:

  

  

   " (5) Subsection (3) does not apply in relation to the supply of a quantity
of the relevant prohibited substance by a person who
is authorised under Part
IV, Division 1 to supply that quantity for the purposes of a program of
research or education, or in relation
to the possession of such a quantity for
the purpose of such supply. .... (7) Paragraph (a), (b) or (c) of the penalty
for an offence
against subsection (3) does not apply in relation to a person
who has been convicted on indictment of an offence against that subsection
unless it is alleged in the indictment, and it is proved beyond reasonable
doubt that the quantity of the substance to which the
offence relates was -
(a) in the case of paragraph (a) - a commercial quantity; (b) in the case of
paragraph (b) - a traffickable
quantity; or (c) in the case of paragraph (c) -
sold or supplied, or possessed for the purpose of sale or supply, to a person
who
has not attained the age of 18 years. .... (9) Without limiting the
generality of subsection (2) or (3), a person shall, for the
purposes of
whichever of those subsections is applicable, be taken to participate in the
sale or supply of a drug of dependence or
a prohibited substance if the person
- (a) participates in any aspect of such sale or supply; or (b) being an
owner, occupier or
lessee of any premises, or concerned in the management of
any premises, causes or permits those premises to be used for such as sale
or
supply."

   7. The facts giving rise to the commission of the offence were set out in a
Statement of Facts (Exhibit A) as follows:

  

  

   "At approximately 1.10PM on Friday 24th of May 1996 Constables Schultz and
Evans were carrying out surveillance duties
in Garema Place, Canberra City.

  

   At that time they observed a young male person who was known to police as a
heroin user approach
the accused. The male person was Timothy Cushing whose
date of birth is 18 August 1979.

  

   The accused was sitting at a table
in Garema Place with two male persons
outside a cafe known as 'Noshes'.

  

   Police observed Timothy Cushing approach a number
of persons before he
approached the accused. He crouched down on her right hand side and spoke with
her. Police then observed Cushing
place something from his right hand into the
accused's handbag which was on the ground in front of and to the right side of
the accused.
The accused then reached down and removed an item from her bag.
She then handed this item to Cushing.

  

   The accused then reached
across and handed something to Cushing who took it
in his right hand. Constables Evans and Schultz then approached the table
where
the accused and Cushing were. As they approached Cushing attempted to
flee, however he was apprehended by Constable Evans, a struggle
ensued and
during the struggle Cushing threw a small aluminium foil away from him.

  

   This foil was subsequently weighed and
analysed. The contents of the foil
weighed 2mg and was found to contain heroin and acelylcodine." (sic, should be
'acetylcodeine')

   8. The accused disputed that she directly participated in the sale of the
prohibited substance to Cushing. It was her evidence
that the foil had been
handed to him by another person at the table. It was not in dispute that she
had participated in the sale
by receiving the money into her handbag. It was
common ground that nothing turned on this disputation of the facts.

  

   9. Evidence
was tendered by the Crown as to the accused's antecedents and a
pre-sentence report was also tendered. The court also heard evidence
from the
accused. In the course of this evidence, the accused stated that she did not
know that the purchaser was under the age of
18 years at the time of the sale.
The accused's evidence was that she had not been aware of that fact until told
by the arresting
police officers. That assertion by the accused was not
disputed by the Crown.

  

   10. On 13 February 1997 I adjourned the matter
for further consideration
until 24 April 1997. One reason for this adjournment was to give counsel the
opportunity to research the
question whether it is an element of the offence
created by s164(3)(b) and the penalty provided by sub-paragraph (c), that the
accused
was at the relevant time aware that the person supplied had not
attained the age of 18 years or at least that the accused ought to
have known
that the person had not attained the age of 18 years. I referred counsel to
the High Court decision of R v Reynhoudt [1962] HCA 23;  (1962) 107 CLR 381.

  

   11. Having heard submissions from the Crown and the accused on 24 April
1997, I reserved my decision.
In my interim judgment of 29 April 1997, I
identified two questions arising out of this matter and referred them to a
Full Court,
namely:

  

  

   "Whether the elements of the offence charged comprise, in addition to a
participation in the sale or supply of
a prohibited substance:

  

   (1) an element that the person referred to in s164(3) was a person who had
not attained the age of
18 years; (2) a further element of knowledge on the
part of the accused that the person was a person who had not attained the age
of 18 years."

   12. I was of the opinion that these questions were so important in the
administration of the Drugs of Dependence Act 1989 (ACT) that it would be
preferable to refer them to a Full Court pursuant to s13(3) of the Supreme
Court Act 1933 (ACT).

  

   13. In my interim judgment I observed that:

  

  

   "A significant matter is that the penalty provided in sub-paragraph
(c) is
$100,000 or imprisonment for 25 years, or both. The penalty provided pursuant
to sub-paragraph (d), in any case other than
where the quantity of the
substance is a commercial quantity or a traffickable quantity but not a
commercial quantity, or the quantity
of the substance is sold or supplied to a
person who has not attained the age of 18 years, is only $10,000 or
imprisonment for 5
years, or both. As the penalty for the subject offence is
so severe, the intention of the legislature may well have been to require
the
prosecution to prove not only that the sale or supply was to a person who has
not attained the age of 18 years, but the additional
matter of aggravation,
beyond reasonable doubt, namely that the accused was aware or ought to have
been aware that the sale or supply
was to a person who had not attained the
age of 18 years."

   14. The matter was heard by a Full Court on 4 July 1997. THE FIRST
QUESTION: AN ELEMENT OF THE OFFENCE?

   15. In relation to the two questions posed, the Crown submitted that the
age of the purchaser
was merely a circumstance of aggravation and not an
element of the offence, and that if the Crown was wrong in this, then
nonetheless
it is not necessary for the prosecution to establish a mental
element of either knowledge or recklessness on the part of the accused.

  

   16. The Crown argued that in s164(2) and (3) of the Drugs of Dependence Act
, a distinction is drawn between the offence and the penalty provisions
signified by the heading "Penalty" which is the offence-creating
provision.
The four penalty sub-paragraphs detail the relevant circumstances of
aggravation. The Crown contended that, if the legislature
had intended that
the circumstance of aggravation be an element of the offence, it would have
included the relevant words in unequivocal
terms in the part of the subsection
that created the offence. An example of this type of drafting is s25 of Drug
Misuse and Trafficking Act 1985 (NSW):

  

  

   "25 Supply of prohibited drugs .... (1A) A person of or above the age of 18
years who supplies, or who knowingly
takes part in the supply of, a prohibited
drug (other than cannabis leaf) to a person under the age of 16 years is
guilty of an offence.
.... (2A) A person of or above the age of 18 years who
supplies, or who knowingly takes part in the supply of, an amount of a
prohibited
drug (other than cannabis leaf) which is not less than the
commercial quantity applicable to the prohibited drug to a person under
the
age of 16 years is guilty of an offence."

   17. By way of further example, the Crown referred to various provisions of
the
Crimes Act 1900 (ACT) where the legislature has created offences that
contain circumstances of aggravation as elements of the created offences, see,
for instance, robbery (s100), armed robbery (s101), burglary (s102) and
aggravated burglary (s103). The Crown submitted that the
fact that the
legislature did not follow that pattern in s164 speaks eloquently of its
intention.

  

   18. The Crown also pointed out that the words of the four tiers of the
penalty structure
in s164(2) and (3) describe certain circumstances "to which
the offence relates". In the Crown's submission this is a further indication
that
the elements of the offence are confined to the bare words of the
subsection that contain the prohibition and the penalty structure
is quite
distinct.

  

   19. In addition, sub-s (7) requires the relevant tier of the penalty
structure to be alleged in the indictment
and proved beyond reasonable doubt,
otherwise the penalty provision will not apply. The Crown argued that sub-s
(7) was structured
in this way to give statutory effect to the rule of
practice laid down by the High Court in Kingswell v The Queen (1985) 159 CLR
265. Kingswell was decided in 1985, s164 was enacted in 1989.

  

   20. The majority in Kingswell (supra) held that where the Crown relies on
circumstances of aggravation
they should be charged in the indictment. This
was re-iterated in The Queen v Meaton [1986] HCA 27;  (1986) 160 CLR 359, in respect of the
same legislative provisions.

  

   21. The Crown submitted that although sub-s (7) prescribes
that the
relevant penalty structure does not apply unless it is alleged in the
indictment and proved beyond reasonable doubt, the
relevant penalty component
is not an element of the offence. The Crown argued that since the penalty
provisions do not have any operation
until after conviction, they cannot be
elements of the offence.

  

   22. In Kingswell v The Queen (supra), the High Court considered
the effect
of various provisions of the Customs Act 1901 (Cth) which contain a penalty
structure bearing significant similarities to s164. The majority of the court
specifically rejected
an argument to the effect that the matters set out in
the penalty provisions (s235) concerning, inter alia, the various quantities
of the drug, were indeed elements of the offence. The argument had been that
as those matters had not been included in the indictment,
the offender was
only liable to the lowest of the various maximum penalties available. The
majority (Gibbs CJ, Wilson and Dawson
JJ) said at p273,

  

  

   "An examination of the provisions of the Customs Act does not support the
argument that the Parliament intended that s235(2), read together with each
paragraph of s233B(1), should have
the effect of creating a number of distinct
offences whose elements are to be found described partly in s233B(1) and
partly in s235(2).
The words of s233B(1) and (3) could hardly indicate more
plainly that it was intended that each paragraph of s233B(1) of itself creates
an offence and that a person who is guilty of such an offence is punishable on
conviction as provided by s235. Consistently with
this intention, s235(2)
speaks of "an offence against...subsection 233B(1)", and provides a range of
penalties for any such offence...

  

   Sub-section (3)(b) describes circumstances which, if they existed, would
add to the gravity of the offence and it would give
these provisions a
strained interpretation to regard the absence of those circumstances as an
element of an offence. Clearly enough,
sub-section (3) declares what the
punishment is to be, in certain circumstances, for an offence already defined.
The same is true
of sub-section (2). The proper conclusion is that the
Parliament intended by s233B(1)(cb) to create one offence and to provide by
s235(2) and (3) a range of penalties applicable to that offence in certain
circumstances. The range is large."

   23. The majority
concluded at p276:

  

  

   "The elements of the offence are defined in s233B(1)(cb) and the additional
matters stated in s235(2)
and (3) are relevant to the maximum sentence that
may be imposed but are not ingredients of an offence."

   24. The majority drew
a distinction between a situation in which the
circumstances of aggravation altered the nature of the offence and a situation
in
which they merely increased the available maximum penalty. The court said
at p280:

   "There is a close analogy between those cases
in which the existence of the
circumstances of aggravation converts the offence from a lesser to a greater
one and those in which
the existence of the circumstances of aggravation
renders the accused liable to a penalty greater than that which could have
been
imposed if the circumstances did not exist. In cases of the
first-mentioned kind, the circumstances of aggravation become elements
of a
distinct offence and therefore must be specifically alleged in the indictment.
Where the circumstances of aggravation do no
more than increase the maximum
penalty, they do not alter the nature of the charge although they do affect,
sometimes very materially,
the legal consequences that may flow from a
conviction."

  

   25. The majority went on to conclude that where the circumstances
of
aggravation described in s235(2) are relied on, they should be charged in the
indictment. As has been noted, the local legislature
has seen fit to give
statutory recognition to that rule of practice. Mason J joined with the
majority in agreeing that the matters
contained in s235(2) were matters of
aggravation rather than being elements of the offence. His Honour parted
company with the majority
however insofar as he took the view that the
relevant aggravating feature should not be included in the indictment and
proved to
the relevant standard to the jury. Not surprisingly there was no
suggestion in the majority judgments that any "fault" element should
be
imported in respect of the aggravating features.

  

   26. Reference was also made to Tudman (1996) 9 NSWLR 136. The case turned
upon whether s235 of the Customs Act 1901 (Cth) offended against s80 of The
Constitution which guarantees trial by jury for indictable offences against a
law of the Commonwealth. It is unnecessary to dilate upon the contentious
positions taken by the various members of the High Court on that matter. It is
sufficient to observe that there was unanimity between
the members of the
court on the question of statutory construction which is that the relevant
part of s235 provided for greater maximum
penalties but that those provisions
were not elements of the offences created by s235B.

  

   27. In The Queen v Meaton (supra)
the majority (Gibbs CJ, Wilson and Dawson
JJ) repeated what they had said in Kingswell and set out their reasons for the
rule of
practice suggested in Kingswell (at p363-4):

   "The inclusion in the indictment of matters of fact, which, although not
elements
of the offence, render the accused liable to a greater maximum
punishment, serves the double purpose of informing the accused of
a very
important feature of the case made against him and of enabling the jury (in
the event of a trial by jury) to decide questions
of fact which may very
materially affect the maximum punishment to which the accused is exposed.
Where a jury determines the guilt
of the accused the satisfaction of the court
for the purposes of s235(2) should be consistent with the finding of the
jury."

  

   28. The reasoning in Kingswell and Meaton has been applied in a number of
cases in relation to a variety of statutory schemes
including the Drug Misuse
and Trafficking Act 1985 (NSW) as to which see The Queen v Lee (1994) 76 A
Crim R 271. In the Supreme Court of the Northern Territory in Joshua v Thomson
(1994) 119 FLR 296 the construction of s251 of the Criminal Code of the
Territory had to be decided. That provision was that any person who unlawfully
damages any property is guilty of an offence
and liable to imprisonment for
two years. Sub-sections (2), (3) and (4) each set out four sets of
circumstances which, upon proof,
expose a person to seven years imprisonment,
14 years imprisonment and life imprisonment respectively. Kearney J held,
consistently
with Kingswell, that there was but one offence created and 12
different circumstances of aggravation. Again, consistently with Kingswell
and
Meaton, he held that the requirement in s305(4) of the Criminal Code (that any
circumstance of aggravation intended to be relied
upon must be charged in the
indictment) satisfies the basic principle that all necessary factual
ingredients on which the prosecution
relies must be charged and proved.

  

   29. In Joshua v Thomson (supra) Kearney J followed a previous decision of
Asche CJ in
the same court in O'Brien v Fraser (1990) 99 FLR 251 which
concerned the construction of s188(1) and (2) of the Criminal Code. Section
188(1) provides for an offence of common assault and sub-section (2) provides
that if the offender commits one of various
circumstances of aggravation he or
she is liable to a larger maximum penalty. Asche CJ concluded that the
circumstances of aggravation
did not constitute separate offences.

  

   30. Next the Crown referred to the Explanatory Statement to the legislation
to which
recourse may be had pursuant to the Interpretation Act 1967 , s11.
The submission was that the present legislation was intended,
inter alia, to
increase penalties for the various offences created by s164. In that statement
the following passage appears:

  

  

   "... where [the quantity is less than the traffickable quantity the
penalty] is $10,000 or imprisonment for 5 years or both,
though a person
caught supplying even a small quantity to a person under the age of 18 is
subject to a penalty of $10,000 or imprisonment
for 25 years or both. This
penalty reflects the Government's policy of stamping out those who supply
youngsters with these drugs
and substances (and in a slightly different
context the policy is said to reflect) the Government's desire to discourage
suppliers
from introducing drugs to young people."

   31. It was submitted that it is clear that the Government's objective was
to ensure,
as far as possible, that youth is not corrupted and exploited and
to signal that it is a desirable community objective to prevent
young recruits
from being introduced to prohibited drugs with all the attendant harmful
consequences that so frequently occur. Accordingly,
and given those
objectives, it is hardly surprising that what may appear to be a harsh maximum
penalty, is precisely what the legislature
intended. To require the
prosecution to establish a "fault" element on the part of the supplier would
be, given the notorious difficulties
associated with establishing a person's
state of mind about another person's age, to thwart if not sabotage those
objectives.

 


   32. In relation to this point the Crown referred to various other cases and
statutory provisions where the prosecution was not
required to prove a fault
element or a state of mind on the part of the accused. In particular, the
Crown relies upon s92E(1) of
the Crimes Act 1900 (ACT) where sexual
intercourse with a person under 10 years is an offence of absolute liability.
There are various defences to the
offence of sexual intercourse with a person
under the age of 16 and it is based upon this factor that the Crown argues the
legislature
could have provided for a similar defence in the present context.
The omission, it was submitted, could only have been deliberate
and tends to
demonstrate how seriously the legislature views the selling of drugs to
children and young people.

  

   33. By way
of contrast, the Drug Misuse and Trafficking Act (NSW) s25(2B)
provides for a defence of honest and reasonable mistake in relation
to drug
offences where the purchaser is under the age of 16. If the legislature
intended that there be a defence to an offence against
s164(3)(b) in the
present case, it would have provided for a defence such as the one contained
in the NSW legislation.

  

   34.
The present case can be distinguished from Kingswell . First, the
prohibition and the penalty provisions considered in Kingswell
were contained
in two separate sections, whereas in the present case they are contained in
the same section. Nothing much turns on
this. Secondly, in Kingswell the
circumstance of aggravation relied upon was not charged in the indictment
whereas in the present
case it was.

  

   35. The majority judgment is helpful in that it specifically rejected an
argument that the penalty section (that
prescribed penalties according to the
quantity of the drug involved), contained elements of a separate offence.
These two sections
combined are similar to s164(3) in the present case.

  

   36. The Crown submitted that this reasoning in Kingswell is applicable
to
the present case in that subsection 3(b) defines the offence and
sub-paragraphs (a), (b) and (c) declare what the punishment should
be
according to certain circumstances. In this way the penalty sub-paragraphs do
not constitute elements of the offence. They come
into play once the offence
is proved and the sentencing function is to be performed.

  

   37. The thrust of the Crown's submission
is illustrated by the majority
judgment in Kingswell (at p273).

  

  

   "Subsection (3)(b) describes circumstances which, if
they existed, would
add to the gravity of the offence and it would give these provisions a
strained interpretation to regard the
absence of those circumstances as an
element of an offence. Clearly enough, sub-s.(3) declares what the punishment
is to be, in certain
circumstances, for an offence already defined. The same
is true of sub-s. (2). The proper conclusion is that the parliament intended
by s.233B(1)(cb) to create one offence and to provide by s.235(2) and (3) a
range of penalties applicable to that offence in certain
circumstances. The
range is large."

   38. Whether the circumstance of aggravation had to be proved by the Crown
beyond a reasonable
doubt, was not the subject of argument in Kingswell.

  

   39. The majority, at p280, distinguished between when a circumstance
of
aggravation changes the type of offence and when a circumstance of aggravation
merely increases the available maximum penalty.

  

  

   "There is a close analogy between those cases in which the existence of the
circumstances of aggravation converts the
offence from a lesser to a greater
one and those in which the existence of the circumstances of aggravation
renders the accused liable
to a penalty greater than that which could have
been imposed if the circumstances did not exist. In cases of the
first-mentioned
kind, the circumstances of aggravation become elements of a
distinct offence and therefore must be specifically alleged in the indictment.
Where the circumstances of aggravation do no more than increase the maximum
penalty, they do not alter the nature of the charge although
they do affect,
sometimes very materially, the legal consequences that may flow from a
conviction."

   40. The majority recognised
a fundamental principle, that questions of fact
that impact upon the liability of the accused to punishment should be decided
by
the jury. A different situation arises when the aggravating circumstances
are relevant only to the exercise of the sentencing discretion
by the judge (p
280).

  

   41. Given the similarity in structure between the Customs Act and the Drugs
of Dependence Act , the same reasoning as that adopted by the High Court in
Kingswell should be applied to the construction of the Drugs of Dependence Act
. Particularly is this so when one notes that the legislature had the benefit
of the decisions in Kingswell and Meaton when it enacted
the Drugs of
Dependence Act .

  

   42. If the legislature had not wished to adopt that reasoning and apply it
to the Drugs of Dependence Act , it could have enacted explicitly that the age
of the person supplied being under the age of 18 years was an element of the
offence
and, secondly, it could have required the prosecution to prove that
the accused person knew that the person supplied was under the
age of 18 years
by insertion of the word "knowingly" as is commonly done in criminal statutes.

  

   43. I would answer the first
question "no". THE SECOND QUESTION: KNOWLEDGE
ON THE PART OF THE ACCUSED THAT THE PERSON WAS A PERSON WHO HAD NOT OBTAINED
THE AGE
OF 18 YEARS?

   44. The answer to this question lies in the answer to the first question.
If the age of the person supplied is not
an element of the offence but merely
a circumstance of aggravation as in my opinion is the case, it is not
necessary for the prosecution
to establish any mental element of either
knowledge or recklessness on the part of the accused. Accordingly I would also
answer this
question "no".

  

   HIGGINS J:

  

   I have read in draft form the judgment of Gallop J. I agree with his
Honour's conslusions
and the reasons therefor.