O'Neill v The Queen

[2021] NSWDC 468

District Court

New South Wales

Medium Neutral Citation:

O’Neill v R [2021] NSWDC 468

Hearing dates:

09 February 2021

Date of orders:

09 February 2021

Decision date:

09 February 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See [29]-[30]

Catchwords:

Criminal Law – Conviction Appeal – 2 charges of the deemed supply of prohibited drugs, one charge of supplying GBL, second charge of supply methylamphetamine – Drugs found in search of a unit where A had been staying for 3 weeks – Whether A was sole occupier of unit and whether she knew that there were the prohibited drugs in the unit – Court not satisfied that prosecution proved that A knew of the presence of the GBL in the unit – May have been left there by previous occupier and nothing to alert A to its presence – Conviction re methamphetamine upheld – Aggregate sentence set aside, but indicative sentence for methylamphetamine used and magistrate’s finding of special circumstances applied.

Legislation Cited:

Firearms Act 1996

Cases Cited:

He Kaw Teh v The Queen (1985) 157 CLR 523

R v Filippetti (1978) 13 A Crim R 335

Category:

Principal judgment

Parties:

Appellant – Bridget Ann O’Neill
Crown – Regina

Representation:

Appellant – S. Stratton SC of Counsel
Crown – D. Gunter, sol. (DPP)

File Number(s):

2020/00121154

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

08 September 2020

Before:

Stewart LCM

File Number(s):

2020/00121154

Judgment

1. HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Stewart, sitting in the Central Local Court on 8 September 2020. The hearing of the matter took place on Tuesday 1 September 2020 and the decision was given a week later. The first offence with which the appellant was charged was that between 9.13am and 12.40pm on 22 April 2020, at Pyrmont, she did supply a prohibited drug, namely, gamma-Butyrolactone, to which I shall refer hereafter as GBL. The second charge was similar and related to the prohibited drug methylamphetamine.

2. At about 9am on Wednesday 22 April 2020 Leading Senior Constable Matthew Cummins and Constable Riley Mason of the Sydney City Police Station attended the premises known as 1 Wattle Crescent, Pyrmont. They went there for the purpose of serving upon the appellant a Firearm Prohibition Order under s 74A of the Firearms Act 1996. When the two police officers arrived at 1 Wattle Crescent they rang the doorbell to the appellant’s unit. They announced their office and asked the appellant if she could come down to the front door so that they could speak with her. The appellant complied. Cons Mason identified himself and his station. He then witnessed LSC Cummins explain and serve upon the appellant the Firearm Prohibition Order.

3. LSC Cummins then informed the appellant that police would conduct a search of her premises at that time to ensure compliance with the order set out in the Firearm Prohibition Order. Cons Mason asked the appellant was there anyone living with her at present. The appellant said this:

“It’s not just my place, so the place is um, my Asian friend um, I don’t know her last name but it’s actually her place.”

Cons Mason then asked her who owned the apartment or by whom it was rented. The appellant said:

“Um, rented by my Asian friend, I don’t know her last name because it is Korean.”

The police officer then asked her whether the appellant sublet the tenant from the Korean lady. The appellant said:

“No, she’s actually paying for it, she’s letting me stay here ‘cause my lease ended at my other place so I got changed over.”

Cons Mason then asked the appellant how long she had been living at this unit at Wattle Crescent and she said “Just recently,” meaning that she had only recently started living in that unit.

4. Sergeant Tessadri then went over to the appellant and informed her that she will be the subject of a search under the Firearm Prohibition Order. A number of other police had attended, police from what was known as Operation Odin and police from the Sydney City Proactive Crime Team. The appellant gave the keys to the unit to the police to enable them to enter her flat at 9.13am. All the police from both Operation Odin and the Sydney City Proactive Crime Team had entered the unit by 9.22am. The appellant had entered the premises and fetched her dog and some cigarettes sat on the balcony of the premises.

5. At about 9.27am Cons showed to Cons Mason what he thought were drug paraphernalia located on the kitchen bench, which Cons Mason believed was consistent with the consumption of the prohibited drug GBL, or an analogue of that drug. Cons Meurant also found near the kitchen bench a small red roller with a small amount of aluminium foil rolled onto it. Cons Mason believed that that was used for packaging drugs in small amounts of aluminium foil. I should point out that GBL or its analogues are liquids rather than substances that could be wrapped in aluminium foil.

6. By the time the small red roller with aluminium foil had been found the police firearms dog had indicated that there were no firearms in the unit. However, eight minutes later Cons Lauren Smith advised Cons Mason that she had located three separate 1 litre Cottees Cordial bottles in the fridge which contained a clear liquid. Cons Smith believed that the three Cottees bottles found in the fridge contained the drug GBL.

7. The search was then halted whilst a crime scene warrant was obtained from the Registrar of the Downing Centre Local Court. The search was resumed at around 11am.

8. In the meantime the appellant had been arrested by Cons Mason for possession of an indictable quantity of GBL and was advised of her right to silence. There was then a thorough search of the unit. The unit is best described by the learned magistrate in his reasons. He said this:

“The unit is set out such that upon entry via the front door, there is a direct line of sight through a lounge room to a veranda. On the left as one enters the unit is a small kitchen with a fridge, cupboards and a bench. On the right is a small hallway leading to the front bedroom, known as bedroom 1, and a separate bathroom, known as bathroom 1, to the left of it. In that short hallway is a laundry closet on the left side. Proceeding through the lounge room and immediately before reaching the veranda on the right side is a larger bedroom, known as bedroom 2, which has an en suite, which is known as bathroom 2.”

Personally I would have described the bedroom with the en suite bathroom as the master bedroom and the bedroom identified as bedroom 1 as the second bedroom.

9. After the crime scene warrant had been received by the police a drug detection dog was taken through the unit. The dog made three indications of having found a prohibited substance, the first being in a grey Calvin Klein bag in bedroom 1, the second in a large blue bag with strap handles in bedroom 2 and a fawn coloured lady’s handbag on the floor near the bedside table in bedroom 2. The Calvin Klein bag was found close to a black bag containing a letter addressed to the appellant.

10. According to the learned magistrate the bed in bedroom 1 had been made-up at the time of the execution of the crime scene warrant and did not appear to have been recently slept in. That observation was recorded on the body worn video camera used by Cons Matthew Mamouzelos, and which film eventually became exhibit 11 in the Local Court. The video film in the bedroom was exposed at 11.06.39.

11. All told, the police found four sources of methylamphetamine in the unit. There was a bag of a crystalline substance found in a Sabco mop head packet, which included the mop head. The weight of the drug was 6.53 grams. In a small resealable clear plastic bag found on the balcony was 1.30 grams of methylamphetamine. In another such bag containing a crystalline substance was 1.36 grams of methylamphetamine. The total weight of the drugs was 9.19 grams of methamphetamine.

12. In each bathroom was found a white plastic dispenser bottle. The plastic was coloured white and one could not see through the plastic what may or may not have been in the bottle. Each bottle had a label. The labelling of the bottes can be seen in the photographs taken by a Crime Scene Officer, whose statement became exhibit 9 in the Local Court and to which there are attached a number of coloured photographs. There is only one label on each of the bottles. The bottles appear to be identical. The bottles only contain what appear to me to be Chinese characters. If be wrong in that the ideograms might be Korean or they might be Japanese. The labels do not, as far as I can make out, contain any English. The labels are highly adorned with drawings or pictures of flowers and seem to me to be of Chinese origin from the nature of the decoration. The important thing to note is that these bottles would not show what they contained by looking at them, nor would the labelling enable the current appellant, a native of Newcastle upon Hunter, know what was within them. What was within each bottle, one found in each bathroom, was the drug GBL. The bottles had been tampered with. The bottles contain a pump action lever to dispense the contents. The tube from the pump descended into the bottle had been cut such as no liquid could actually be pumped by using the pump on the bottle.

13. In bathroom 1 there were at least three or four other bottles that I could see on the floor of the shower cubicle, and the Asian bottle in question was amongst them. In bathroom 2 there were at least six other bottles on the floor of the shower cubicle and the Asian bottle found in that shower cubicle was amongst the other six or more bottles.

14. There were two substantive issues to be determined by the learned magistrate. The first was whether the appellant was the occupier of the premises, and, indeed, whether she had exclusive occupancy of the premises. The other issue that needed to be determined by the learned magistrate was if he answered the first question yes, whether the appellant knew whether the substances which amounted to illegal drugs found by the police were known by the appellant to be there.

15. In a very careful and lengthy judgment the learned magistrate identified 20 things which indicated to him that the appellant had exclusive possession of the premises. I would express some of his reasons a little differently, but using those reasons and using my language, they are these:

1. At the time of the searching of the premises the appellant was on bail for other alleged offences. She had been bailed to reside at this unit at Wattle Crescent, Pyrmont.

2. The appellant was at those premises when the police went there to serve the Firearm Prohibition Order.

3. The appellant had the keys to the premises which she gave to the police.

4. The appellant’s dog was in the premises. I understand from other material, which I read unnecessarily, that her dog is a white Staffordshire Bull Terrier.

5. The appellant smokes cigarettes.

6. Domesticated dogs generally eat dog food provided to them by their owners. Dog food can either be dry or wet. Wet dog food is usually contained in cans.

7. There was a dog food can on the veranda of the unit with cigarette butts in it and a small resealable bag containing methylamphetamine on top of the those cigarette butts. I should indicate that the film, exhibit 11 in the Local Court, shows the appellant sitting on the veranda smoking cigarettes when asked certain questions from time to time by Cons Mason.

8. Documents identifying the appellant were found in bedroom 1, a bail surety document on a bedside table, Court Attendance Notices in the appellant’s name in and envelope addressed to the appellant in a carry bag found in the wardrobe.

9. The indication made by the drug detection dog of the Calvin Klein bag in bedroom 1 was next to the carry bag, it contained a letter addressed to the appellant.

10. The appellant’s DNA was found on the Asian dispenser bottle found in bathroom 1 which was found to contain GBL.

11. There was an identical bottle in bathroom 2, but that did not contain the appellant’s DNA.

12. The appellant clearly admitted that she used each bathroom.

13. The bed in bedroom 1 appeared to have been made.

14. A driver’s licence in the name of Kane Hoskin (a male) was found in a drawer of the wardrobe in bedroom 2, but apart from that single item there was no other documentation found of any other person or men’s clothing found in the unit.

At this point the learned magistrate found that there was no clothing belonging to anyone other than the appellant, but it is impossible to exclude the fact that some of the female apparel found in the unit may have belonged to the Korean lady who was paying the rent, according to the appellant.

15. When the appellant asked the officer to obtain a jumper for her she was asked in which room it would be found and the appellant said “both.”

16. The resealable bag of drugs found in bedroom 2 on the bedside table was next to a psychological report made about the appellant and near five envelopes which had written on their back the name and address of the appellant.

17. The appellant had told Sergeant Tessadri that she had slept with her dog.

True it is that the material before the learned magistrate was hearsay, but it was admitted without objection. The material is this:

“At 12.14..pm Sergeant Tessadri was searching the second bedroom next to the bed stated.

“Do you want to just make a note that she [the appellant] told    me before she sleeps with the dog and there is dog hair    located on the bed”

There was a dog collar also located on top of the bed.”

What the appellant told Sergeant Tessadri was admitted without objection. The observation that there was a dog collar found on the top of the bed was one made directly by Cons Mason.

18. When asked which bedroom the defendant was staying in she told police she was changing rooms.

That answer is entirely consistent with the fact that the identification documents found on the bedside table in bedroom 1, as well as a letter in a black bag in the wardrobe. It is also, of course, entirely consistent with the identification documents found in bedroom 2.

19. Drugs were found in each bedroom.

20. The bed in bedroom 1, the magistrate repeated, did not appear to have been slept in, but one cannot exclude the possibility that the appellant had slept in it the night before and had made the bed up before the police arrived.

LUNCHEON ADJOURNMENT

16. The other evidence which needs to be considered on the question of possession of the premises is what Cons Mason, the officer in charge of the investigation, was able to ascertain about the tenant of the unit in which the appellant was temporarily residing at the time of her arrest. In cross-examination Constable Mason said this:

“I contacted the real estate agent that was originally looking after the property and then I was given a name of an Asian male to call to say that he owned the unit, and then I made enquiries of that Asian male, it was a very funny story, and that Asian male gave me the phone number of another male, then I spoke with that male, and then that other male had said that a Korean lady was subletting it from him and that he believed that the Korean lady was then subletting to the accused for a number of weeks, and that the Korean lady was paying for Bridget too...so it was a sublet of a sublet of a sublet, the sublet like it was - yeah.”

The thing to note from that answer is that the Constable believed from what he was told that the Korean lady was paying for the appellant to stay in her flat, as the appellant said was the case, but that it was a question of sublease rather than of her co-sharing or co-occupation.

17. The other evidence of Cons Mason which was important was that he believed that the appellant had only been staying at this unit for some three weeks. That evidence may be found on p 29 in the transcript of 1 September 2020.

18. It is clear from what the appellant admitted that she was staying in either bedroom, and that, for example, she appears to have spent the night preceding the day of her arrest in the master bedroom, because of the dog collar found on the bed and the dog hair noticed on that bed. In any event it is clear that the appellant used one or other of the two showers and that her clothing was in each of the two bedrooms, because when she asked for a jumper to be fetched for her one could be found in either of the two bedrooms. That is inconsistent with the appellant’s sharing the unit with, for example, the Korean lady. That it is consistent with the Korean lady permitting the appellant to stay there whilst the Korean lady was absent, perhaps on holiday or interstate, or because she may have been staying with other friends and needed somebody to care for her flat. It is also instructive to note that the appellant not only could not give her Korean lady friend’s surname, but she also did not volunteer her first name, so that indicates a lack of familiarity with the Korean lady. I am persuaded beyond reasonable doubt that the appellant was the sole occupier of the premises for about three weeks. That is consistent with what the learned magistrate found.

19. However, being the sole occupier does not make the appellant the possessor of everything found in the unit. In He Kaw Teh v The Queen (1985) 157 CLR 523, Gibbs CJ said at 539:

“The effect of the authorities to which I have referred is that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence (‘in his possession’) themselves necessarily import a mental element. In such a case it is unnecessary to rely on the common law presumption that mens rea is required.”

Mr Stratton SC, for the appellant, also referred me to the judgment of Street CJ in Filippetti (1978) 13 A Crim R 335 at 338-9 which I shall not bother including in these reasons, but the dictum is easily accessible. That case involved premises which were occupied by a number of people and Street CJ pointed out what was necessary for the Crown to prove in a prosecution of a person for possession of “Buddha sticks” where there were multiple occupiers of the premises in question.

20. In my view, a distinction needs to be drawn here between the GBL and the methylamphetammine. I turn firstly to the methylamphetamine. As I pointed out there was a white plastic pump dispenser each containing GBL in each of the two shower cubicles in the flat. However, each of those containers was surrounded by other containers of products one would normally find in a shower cubicle, that is shampoo, conditioner, perhaps body wash, perhaps other forms of liquid soap or other beauty preparations. Each of the pumps had been disabled so that on activating the pump nothing happened. The DNA testing shows that the swab of the shampoo nozzle found in bedroom 1 recovered a mixture that originated from at least two individuals, the appellant and an unknown male known as B could not be excluded as contributors to that mixture. DNA testing of the shampoo nozzle of the other bottle which contained GBL, that is that found in bedroom 2, was unsuccessful.

21. At this point I should interject this piece of information. Neither of the three Cottees Cordial bottles contained any prohibited substance. What they did contain I do not know. For all anyone knows it could have been water. DNA recovered from one bottle lid originated from at least three individuals, one of whom could not be excluded as being the appellant. A swab of the lid of another of the Cottees’ bottles recovered DNA that had originated from a mixture of at least three individuals and the appellant could not be excluded as the major contributor to that mixture. On the lid of the third Cottees’ bottle DNA recovered was a mixture that originated from at least three individuals and the appellant could not be excluded as a contributor to this mixture, nor could the man known as B. It is, of course, quite possible that the man B was the man known as Kane Hoskin, whose driver’s licence was found in the wardrobe of bedroom 2.

20. The significance of the appellant’s DNA on the nozzle of the bottle, which is generally described as a shampoo bottle, in bathroom 1, is consistent with its having been touched by the appellant. However, in the process of touching one of the other bottles she could have touched it, and she would do so if she cleaned the shower cubicles. In the process of cleaning the floor of the shower cubicle she could have picked up and moved each of the bottles to clean underneath them. In other words there is a perfectly lawful, legitimate reason for her DNA to be found on the nozzle of the shampoo container found in bathroom 1.

21. Did the appellant know that each of the bottles containing the GBL contained that substance? I cannot be satisfied beyond reasonable doubt of that fact. Firstly, the bottles appear to be of Chinese or other Asian origin. It may be that they were placed there by the Korean lady, or by a Korean man, who preceded the occupation of the Korean lady. What they contained was not visible to the human eye. If one activated the pump nothing would have happened. If the appellant had touched the pump in order to find out what was in it she would not have been able to detect anything. If she did so in the process of showering she may have then moved to another bottle to obtain, for example, shampoo or conditioner or body wash. It is unlikely that the bottles were purchased by the appellant, because the labels did not disclose what they contained. It is more likely that they were purchased by an Asian person or perhaps brought into the country. Having seen a bottle with an Asian label on it and knowing that the flat was tenanted by an Asian lady one could appreciate a person such as the appellant believing the bottle to belong to the tenant and therefore not to have interfered with it.

22. In those circumstances I cannot be persuaded beyond reasonable doubt that the appellant knew of the presence of the GBL in each of those Asian “shampoo” pump white plastic containers. It follows that the conviction for the deemed supply of the GBL must be set aside.

23. The position with the methylamphetamine, however, is otherwise. The likelihood is that the appellant used an empty can of dog food as an ashtray on the balcony of the unit. She was a smoker. That tin contained cigarette butts. On top of the cigarette butts was a clear plastic container containing a crystalline substance. She must have known it was there. It is highly likely that she would have placed it there, placed it on top of cigarette butts which she had deposited in the tin. There was also a packet of crystalline substance found on the bedside table in bedroom 2 next to the psychological report concerning the appellant. Since the appellant was using bedroom 2 in which to sleep and had clearly deposited there not only the psychological report concerning herself, but also inter alia, her clothing. She must have known of the presence of that crystalline substance there on the bedside table. It follows inexorably that when methylamphetamine was found secreted in the Sabco mop head plastic bag in the wardrobe in bedroom 1 that it was placed there by the same person who placed the other methylamphetamine in the improvised ashtray on the balcony and on the bedside table in bedroom 2, namely, the appellant.

24. It is not necessary for me to find that she had placed them there, merely that she knew that they were there and the clear inference to be drawn, especially from the presence of the crystalline substance in the clear plastic bags on both the balcony and in bedroom 2 is that the appellant knew that the methylamphetamine was there present. For those reasons the appeal in respect of the second charge, that is sequence 2, the deemed supply of the prohibited drug methylamphetamine, must be dismissed.

25. It follows inexorably from the two findings I have announced that there must be an enquiry into the sentence to be properly passed in respect of the one conviction which I uphold. Following upon his convicting the appellant Stewart LCM sentenced the appellant. His Honour took into account 56 days of pre-sentence custody, a period from 22 April 2020 until 16 June 2020. That resulted in the sentence being backdated until 5 July 2020. His Honour imposed an aggregate sentence of two years and six months to date from 15 July 2020 until 14 January 2023, with a non-parole period of 18 months which was to expire on 14 January 2022. The indicative sentence for the supply of the GBL was 21 months. The indicative sentence for the supply of the methylamphetamine was 12 months. His Honour found special circumstances. On his Honour’s reasoning the non-parole period was 60% of the head sentence.

26. The aggregate sentence must be set aside. However, following what his Honour did, the head sentence for the supply of methylamphetamine would be 12 months, and 60% of that period rounded down is seven months. Since the sentence commenced on 15 July 2020 the non-parole period of seven months expires on 14 February 2021, that is next Sunday. No error has been suggested by Mr Stratton, for the appellant, in his Honour’s approach to the sentence, and when I indicated to Counsel for the parties that if I followed his Honour’s reasoning the non-parole period for the 12 month head sentence should be seven months and will expire on 14 February 2021 neither party wished to address me further.

27. For those reasons I formally set aside the conviction recorded for H7456132 sequence 1. I set aside the aggregate sentence imposed by the Local Court on 8 September 2020.

28. The appellant is sentenced to imprisonment. I fix a non-parole period of seven months, commencing on 15 July 2020 and expiring on 14 February 2021. I fix an additional term of five months, expiring on 14 July 2021. The total sentence is, therefore, 12 months. I have found special circumstances. The appellant is eligible for release on parole next Sunday 14 February 2021.

I trust you understand what has happened, Ms O’Neill?

APPELLANT: Yes, your Honour.

HIS HONOUR: What happened to the dog? Is it with relatives or friends?

APPELLANT: Yes with a friend, yes.

HIS HONOUR: So you will be able to retrieve him?

APPELLANT: Yes.

HIS HONOUR: That’s good.

Any other orders sought?

GUNTER: No thank you, your Honour.

APPELLANT: Thank you.

**********

Decision last updated: 08 September 2021