The Carey Defence: Temporary Drug Possession Doesn’t Amount to Supply

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By Paul Gregoire and Ugur Nedim

At around 2.30 am on 3 October 2008, police pulled over Dwayne Schirmer, who was driving a red Nissan Exa along the Midlands Highway near Glen Innes. After blowing negative on a breathalyser test, Schirmer admitted that he had a small amount of cannabis in the glovebox.

The officers decided to search the vehicle and asked 18-year-old Jacinta Alliston sitting in the passenger seat to get out of the car. An officer then located a black purse belonging to her that contained some paste and pills that turned out to amount to 129.3 grams of methamphetamine.

The pair were subsequently arrested. And a further search back at the station, located five sealed plastic bags beneath the back passenger seat. Alliston’s fingerprints were found on several of the bags, which all up contained a total of 973.5 grams of methamphetamine.

Alliston and her then partner Schirmer were both tried and found guilty of drug supply. Although, Alliston always maintained she had no idea about the drugs in the back of the car, and she wasn’t too concerned about what was in her purse, as she said “they weren’t mine to begin with”.

Weighing up the options

Most of the NSW laws relating to illegal drugs are contained in the Drugs Misuse and Trafficking Act 1985 (NSW) (DMT Act). It sets up a scheduling system that outlines quantities of illicit substances that have an effect on the charges laid against an accused and the severity of the penalties.

For instance, in the case of Alliston and Schirmer, they were found with a total of 1,102.8 grams of methamphetamine in their possession.

The DMT Act provides that 1 kilogram or more of that drug is classed as a large commercial amount, while 250 grams is a commercial quantity. To possess an indictable amount, one must have at least 5 grams of methamphetamine, and 3 grams is classed as a traffickable quantity of ice.

Alliston and Schirmer were charged with the supply of a large commercial amount of a prohibited drug, contrary to section 25 of the DMT Act. If a defendant is found guilty of this offence, they can be sentenced to up to life imprisonment and/or fined $550,000.

A standard non-parole period (SNPP) of 15 years applies to this offence as well. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

However, if a jury finds an accused not guilty of large commercial supply, section 25 allows for them to still be found guilty of a commercial supply of the drug. This offence carries a maximum of 20 years behind bars and/or a fine of $385,000. And an SNPP of 10 years applies to this crime.

And in Alliston’s case, if the jury considered her innocent of commercial supply, it would still have been open for them under section 25, to find her guilty of supply of an indictable amount of ice, which carries a maximum gaol time of 15 years and/or a fine of $22,000.

Supply all around

In Alliston’s case the prosecution didn’t have to prove she was supplying the drugs, as section 29 of the DMT Act stipulates that if someone is found with more than a traffickable amount of a drug, they can be charged and convicted of supply, regardless of the evidence. This is known as deemed supply.

A jury found Ms Alliston guilty of a commercial supply of a prohibited drug. And on 30 July 2010, NSW District Court Judge Penelope Hock sentenced the young woman to 7 years behind bars, with a non-parole period of 3 years and 6 months.

Her Honour found special circumstances in Alliston’s case, because of her troubled upbringing.

If special circumstances are found, it means an offender can spend more time on parole than stipulated under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires that time spent on conditional liberty must not exceed a third of the non-parole period.

The Carey Defence

Ms Alliston appealed both her conviction and her sentence to the NSW Criminal Court of Appeal (NSWCCA) on 3 August 2011. She did so on four grounds, the most important one being that the sentencing judge made an error in not informing the jury that the Carey defence was open to her.

NSWCCA Justice Peter McClellan set out that the Carey defence applies when “a person has drugs under their physical control but always intends to return them to the owner or the person reasonably believed to be the owner”.

The Carey defence was established in the 1990 case R versus Carey, which involved a woman holding onto her sister’s drugs for a night. And even though the illicit substances were located in the draw of her bedside table, it was proven they weren’t hers and she’d never intended to supply them.

And this defence has held in a number of cases. In 1990’s R versus EAS, a man was found not guilty for storing his brother’s cocaine whilst he was interstate, while in 1991’s R versus Tuckey, the accused wasn’t guilty as he was holding onto drugs in lieu of payment for clothing he’d sold.

Carey in the current context

For the defence to be sustained, Justice McClellan explained it’s “necessary for the party raising it to demonstrate that the evidence is capable of proving that the accused’s possession of the drugs was merely momentary or transient and that the accused intended to return the drugs to their owner”.

Alliston’s lawyer had raised the Carey defence with Judge Hock during the trial, suggesting that although there wasn’t direct evidence stating that she was planning on giving the drugs back to Schirmer, she did state on a number of occasions that she didn’t know what they were for.

His Honour found that the sentencing judge had indeed made an error in not informing the jury about the Carey defence in reference to the methamphetamine that was found within Ms Alliston’s purse. And he upheld that ground of appeal.

However, this didn’t impact Alliston’s actual conviction, as she was found guilty of commercial supply, which is a quantity greater than what was in her purse. So, as Justice McClellan pointed out, the jury must have found her guilty at least partially based on the drugs found in the back seat.

Not an unreasonable punishment

The final ground Alliston submitted to the court of appeal was that her sentence was excessive considering her circumstances. But, his Honour didn’t agree, as the trial judge had already imposed a sentence that required less custodial time due to a finding of special circumstances.

And while the accused was less culpable than her co-offender, this was already reflected by his conviction on the more serious charge of large commercial supply and his longer sentence.

As well, the jury found that Alliston must have been aware of, and indeed, help pack the larger supply hidden in the back of the car.

So, on 16 December 2011, Justice McClellan dismissed the appeal. Justice Elizabeth Fullerton agreed with his Honours findings. However, whilst agreeing that the sentence wasn’t manifestly excessive, Justice Carolyn Simpson reasoned that the Carey defence shouldn’t have applied either.

Her Honour maintained that Judge Hock was correct in denying that the defence should apply, because at no time had the defendant made any indication that she was definitely going to return the drugs to Schirmer. And the Carey defence is based solely upon transitory possession.

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