R v Agoris

[2020] NSWDC 535

District Court

New South Wales

Medium Neutral Citation:

R v Agoris [2020] NSWDC 535

Hearing dates:

31 August, 1, 2 September 2020

Decision date:

04 September 2020

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

In respect of the indictment dated 31 August 2020, the Accused is found:-

(1) Guilty of Count 1

(2) Guilty of Count 2

Catchwords:

CRIME – Judge alone trial – Accused charged with two counts of inciting the supply a prohibited drug – One count concerning methylamphetamine – One count concerning buprenorphine – Where the Accused is an inmate at a correctional facility – Where the only fact in issue is whether the Accused incited another to supply drugs – Whether the Accused had the intention to incite where the person approached was an established drug dealer

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 133

Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 27

Cases Cited:

De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100

Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47

Fleming v R (1998) 197 CLR 250

Liberato v The Queen (1985) 159 CLR 507

R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390

Category:

Principal judgment

Parties:

Regina (Crown)
Christos Agoris (Accused)

Representation:

Counsel:
Mr M. Rollestone (Crown)
Mr D. McMahon (Accused)

Solicitors:
Director of Public Prosecutions (Crown)
Eliopoulos Lawyers (Accused)

File Number(s):

2019/40662

Publication restriction:

N/A

Judgment

1. The Accused was arraigned before me on 31 August 2020 on 2 counts in an indictment. To all counts he pleaded that he was ‘not guilty.’ The specific counts brought against him allege:-

1. Count 1: That between 21 December 2018 and 7 January 2019, at Nowra in the State of New South Wales, he did incite Roberto Losco to supply a prohibited drug, namely buprenorphine, the supply of prohibited drugs being an offence under Part 2, Division 2 of the Drug Misuse and Trafficking Act.

2. Court 2: That between 21 December 2018 and 7 January 2019, at Nowra in the State of New South Wales, he did incite Roberto Losco to supply a prohibited drug, namely methylamphetamine, the supply of prohibited drugs being an offence under Part 2, Division 2 of the Drug Misuse and Trafficking Act.

Judge Alone Trial

2. As this is a judge alone trial, s 133(2) of the Criminal Procedure Act 1986 (NSW) (the 1986 Act) requires me to state the principles of law to be applied, as well as findings of fact which are made. Section 133(3) of the 1986 Act states that where the law requires a warning to be given to a jury, I must take the warning into account in dealing with the matter.

3. I approach these statutory obligations in accordance with the statements made in both Fleming v R1 and Filippou v The Queen. [1]

Directions

1. (1998) 197 CLR 250.

Presumption of innocence

4. The Accused is entitled to the presumption of innocence. He has pleaded not guilty to the charges and has elected to proceed to a trial by Judge alone – it is my duty and responsibility to consider whether he is guilty or not guilty of the charges and to return my verdict according to the evidence.

5. The Accused is not required to prove his innocence. The Accused is presumed to be innocent of the crimes charged unless the evidence led in the trial satisfies me to the appropriate standard that he is guilty of the crimes.

6. During the trial, the Accused has been bail refused. In relation to the matters the subject of this trial, no adverse inference is to be drawn against the Accused by reason of his bail status or any charge to which it relates.

Onus and standard of proof

7. The Crown bears the onus of proof, from the beginning to the end of the trial, to establish the guilt of the accused. The Accused bears no onus and is not required to prove anything in the trial.

8. The standard of proof is beyond reasonable doubt. Those words have their ordinary English meaning. It is not enough for the Crown to show suspicion of guilt or to demonstrate that the Accused is probably guilty.

9. The matters that the Crown needs to establish beyond reasonable doubt are the essential elements of the offences. However, the Crown is not required to prove the truth and reliability of every disputed fact nor is it required to answer every question that might be posed concerning the evidence in the case.

10. In a criminal trial the only one ultimate issue is: Has the Crown proved the guilt of the accused beyond reasonable doubt? If the answer is “yes”, the appropriate verdict is “Guilty”. If the answer is “no”, the verdict must be “Not Guilty”.

Dispassionate approach

11. It is necessary to consider the evidence in the trial impartially and dispassionately. The Court must not let sympathy or emotion affect its judgment.

12. In the same manner as required of a jury, I will approach the assessment of evidence in this trial in a dispassionate manner and without emotion or sympathy and without any element of prejudice.

Inferences

13. I may in my role as the Judge of the facts, draw inferences from direct evidence. I may only draw an inference adverse to the accused from proven facts if such inference is a rational inference that can be properly drawn from those facts.

14. The Court must not base its conclusion upon mere speculation, conjecture, or supposition.

15. In a criminal trial, I must be satisfied of the guilt of the Accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference.

Right to Silence

16. There was evidence in this case from Detective Senior Constable Stuart Roodenrys (DSC Roodenrys) that the Accused was cautioned and chose not to answer questions put to him by the police at the time of his arrest. All people in this country have a right to silence — that is, to choose not to answer questions put to them by the police. That is what the police officer told the Accused when he was asked whether he wished to be interviewed. There are some exceptions to this right, but those exceptions do not apply here.

17. In this case, it would be quite wrong if the Accused having listened to what the police said, and having decided to exercise his right to silence, later found that I used that fact against him. The fact that he took note of the caution given by the police and chose to remain silent cannot be used against him.

Liberato

18. In this case the Accused gave evidence before me.

19. It is important that I understand the Accused must not be found not guilty if his guilt has not been proved beyond reasonable doubt and the Accused is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. It follows:

1. That if any aspect of the Accused’s evidence gives rise to a reasonable doubt then the Accused is entitled to be acquitted because the Crown would not have established the offence(s) beyond reasonable doubt

2. Even I do not believe the Accused’s evidence, then I should put it to one side. The question will remain: has the Crown, upon the basis of evidence that I do accept, proved the Accused’s guilt beyond reasonable doubt?[2]

   2. (2015) 256 CLR 47; [2015] HCA 29 at [6] and [52] (French CJ, Bell, Keane and Nettle JJ with whom Gageler J agreed).

Intention

20. The instant case requires that I am satisfied that the Accused intended the commission of each offence.

21. Intent and intention are very familiar words; in this legal context they carry their ordinary meaning.

22. Intention may be inferred or deduced from the circumstances in which an event occurs and from the conduct of the Accused before, at the time of, or after he did the specific act. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time.

23. In some cases, a person’s acts may themselves provide the most convincing evidence of his intention. Where a specific result is the obvious and inevitable consequence of a person’s act, and where he deliberately does that act, I may readily conclude that he did that act with the intention of achieving that specific result.

Elements of the Offence

24. The elements of the offence are:-

1. The accused incited

2. The commission of an offence under Division 2 of the Drug Misuse and Trafficking Act 1985.

25. It was not an issue in the case that the relevant drug the subject of Count 1 was buprenorphine which is a prohibited drug pursuant to Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) (the 1985 Act) and that the offence of supply of that drug is an offence under Part 2 Division 2 of that Act

26. Nor was it in issue in relation to Count 2 that methylamphetamine is prohibited drug pursuant to Schedule 1 of the 1985 Act and that the supply of that drug is an offence under Part 2 of Division 2 of that Act.

27. It was not in issue that element (2) was satisfied for both Counts on the indictment.

28. At the outset, I was advised that the two issues in the case would be the identity of the person alleged by the Crown to have been a participant in lawfully intercepted communications between 21 December 2018 and 7 January 2019, the subject of Exhibit E, as well as whether those communications alleged to be on the part of the Accused could amount to an incitement.

29. It is alleged by the Crown that the Accused committed the two offences identified in the counts in the indictment. Those counts are being tried together as a matter of convenience. I am, however, required to return a separate verdict in relation to each of the counts. Each charge needs to be considered separately. There is no legal requirement that each of the verdicts must be the same.

30. Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other counts if there is a logical reason for that outcome.

31. If I were to find the accused not guilty on any count, I would have to consider how that conclusion affected my consideration of the remaining counts.

32. In the Crown case, evidence was tendered of:-

1. The intercepted recordings of recorded calls said to involve the Accused whilst in custody on 19 December 2018 and 24 December 2018 which was marked as Exhibit E; and

2. Electronically recorded interview conducted with Police in an unrelated matter on 7 April 2016 which was marked Exhibit F.

Evidence

33. The Crown called evidence of DSC Roodenrys and Detective Sergeant Steven Davies (DS Davies) going to the question of voice identification of the Accused and the person said to be the Accused in the intercepted recordings in Exhibit E. Also going to the same issue the Crown called evidence from Senior Correctional Officer Brittany Curran on the question of the process involved in the making of inmate calls.

34. The Crown also tendered an agreed fact statement as Exhibit G.

DSC Stuart Roodenrys

35. The evidence of DSC Roodenrys was that in October 2017 police established a task force called ‘Strike Force Aperta’ to investigate drug supply in the Wollongong area. As part of the investigation, Mr Roberto Losco (Losco) was identified as a person of interest. Consequently, a warrant was sought and granted on 17 December 2018 authorising interception of communications made to and from devices Losco was using or likely to use.

36. That warrant was forwarded to the telecom provider ‘Vodafone’ on 18 December 2018. Exhibit B identified the number of interest as number ending “736” and indicated that interception was enabled from 20 December 2018 to 29 January 2019.

37. Another warrant appears to have been issued to Telstra in respect of mobile number ending “816” which enabled interception from 18 December 2019 and 29 January 2019 as shown in Exhibit A. So far as this number was concerned, the evidence of DSC Roodenrys was that it was subscribed in the name of Ms Tamara Mali who was Losco’s sister. The relevant intercepted product was tendered as Exhibit E, compromising of phone calls and various text messages.

38. From the material, Police identified another number said to be associated with the Accused, being number ending “334”. In investigating that number, police contacted the person said to be the subscriber, being a Ms Rebecca Puls, who provided a statement tendered as Exhibit C. That indicated that she had no knowledge of the service prior to being contacted by DSC Roodenrys and did not obtain the service for herself or any other person. She stated that she never resided at the address the service was linked to in Parramatta however she had resided at a similar address in Erskineville. She had never lost any or had any of her identity documents stolen and to her knowledge had never not received identity documents that were to be posted to her or delivered to her by any other means prior to 16 December 2018. Nor had she attended the South Coast Correctional Centre to visit any inmates.

39. The Agreed Facts tendered in Exhibit G indicated that the Accused was an inmate at the South Coast Correctional Centre from 21 December 2018 to 7 January 2019, and thereafter to the present time. It also recorded that Losco pleaded guilty and was convicted of the supply of not less than a large commercial quantity of methylamphetamine (629.25g) and the supply of 3,4 methylenedioxyamphetamine (33.95g) in his possession on 9 January 2019. The Agreed Facts listed the facts accepted by Losco and various Form 1 matters taken into account on sentence.

40. The Crown case was that the various prison calls and text messages obtained by lawful intercept and tendered as part of Exhibit E within Tabs 1-89, being between number ending “816” and mobile number ending “334” were between Losco and the Accused respectively.

41. Also included in that material are communications said to be made by on numbers associated with a Mr Pete Ryan, Mr Codie Bourke, and number ending “766”, said to have been used by a person decoded as JB.

42. The identity of the Accused as the person in the intercepted recordings was ultimately conceded in the Defence case and therefore ceased to be an issue. The matter thereafter proceeded only as to the question of whether the Accused incited the commission of each of the relevant offences, with the second essential element not being in issue as I earlier indicated.

Detective Senior Constable Nathan Kirkwood

43. To that end the Crown called evidence from Detective Senior Constable Nathan Kirkwood (DSC Kirkwood).

44. He was put forth as an expert qualified to express an opinion as to the terminology used in the various intercepted recordings which he had analysed.

45. He stated that buprenorphine was a prohibited drug which was an opioid used to treat opioid addiction, generally sold under the brand name Subutex or Suboxone. He accepted that it is sold or produced as a gel-style strip or film which is dissolved under the tongue. He described common street names for that drug as “bupe, strips, or subbies.” He accepted that the common cost of those strips to be between $10 and $25.

46. In relation to methylamphetamine, he accepted that this is commonly referred to as ice. In terms of a “ball” he accepted that is a reference to 3.5 grams of a powdered drug and that “two balls” was 7 grams of a powdered drug.

47. With reference to the terms “balloons” heard on the recordings, he stated that it was common for drugs in powdered form to be packaged in balloons in a smaller form hence the term balloons. This was so they could be transported to a purchaser in a smaller form, like smaller forms of heroin or ice.

48. Detective Kirkwood described “ipstrays” and “albays” as “pig Latin”, a common language that drug dealers use to try and describe what they are talking about, with “ibstray” being a strip and “allbay” being a ball.

49. Detective Kirkwood accepted that the reference to a ball could relate to a number of different drugs, be it methylamphetamine, cocaine or heroin.

50. With reference to the use of the word “eye” in the intercepted recordings, he stated that this was consistent with the word referring to an eye ball or an 8-ball. An 8-ball was used as a description as it was commonly one eighth of an ounce which is where the 3.5 grams comes from. He accepted that two balls was a doubling of one, so it would be 7 grams. By reference to the intercepted calls, he described the reference to eyes and a ball for $550 as referring to the price of an eyeball or an 8-ball as $550 which was consistent with the price of a ball at the time. This related to the period in late 2018 and 2019. He acknowledged stating a higher price in his statement for the cost of an 8-ball but stated that this was a typographical error and was incorrect for that period, affirming that in late 2018 and 2019 the common price for a ball of methylamphetamine was $550. He stated that the price at that time had dropped significantly due to there being a large amount of methylamphetamine on the market.

51. DSC Kirkwood further stated that he analysed the conversation that related to 18 or 19 ipstrays that were said to have been purchased individually at a cost of $10 each. He stated this referred to strips being a street name for Suboxone strips.

52. Detective Kirkwood’s evidence was by in large not in dispute and is to be accepted.

53. As noted earlier, the Accused accepted that in December 2018 he was an inmate at the South Coast Correctional Centre and remained an inmate until this time. So much was admitted in Exhibit G.

54. It was also not in issue that Losco was at the time of the alleged offending known to the Accused as an established drug dealer.

Exhibit E Recordings and the Accused’s Evidence

55. The Accused accepted that to the best of his knowledge the call recordings played in Court the subject of Exhibit E involved both himself and Losco as the persons communicating on mobile phones.

56. He stated that he first met Losco in around 2013-14 in Dawn de Loas at Silverwater, and he knew that he was in custody for selling drugs. He stated that he formed a relationship that involved letters and discussions about things.

57. In terms of the calls that were made commencing December 2018, the Accused stated that he made those calls to see if Losco could get him some drugs because he knew he could get them. He said that he knew that he could get them as they had spoken plenty of times, he knew that he was at home as he had gotten out of gaol and he was a person he believed could get him drugs. When asked as to when he made the calls for Losco to try and get him some drugs what he expected his answers would be, he stated “100%, I knew he would get them” as he was in discussion with other guys in the gaol as well as selling drugs around Wollongong.

58. In cross-examination the Accused was taken to the contents of a call dated 21 December 2018 at 7.11pm, being Product Number 2274, where the Accused stated to Losco:-

A: Listen, hey can you do me a big favour?

L: Yeah man.

A: All right. Um, I’ve got this guy, have you got a pen and paper?

L: Um, oh um…

A: Or do you want me to ring me later, I don’t care you know, or I’ll send a message if you want.

L: Yeah, yeah send us a message

A: Yeah his name, his name’s Glen all right?

L: Glen?

A: Anyway, yeah his name’s Glen.

L: Yeah.

A: You might know him, like, he does Bupe, okay?

L: Yeah.

A: Yeah, unless you can get some.

L: Yeah.

A: Can you grab some for me.

L: Yes.

59. The Accused stated initially the reference to “unless you could get some” was to whether Losco can get them cheaper. When it was put to him that he didn’t say “unless he could get them cheaper” he accepted that he meant unless Losco could obtain some buprenorphine.

60. It was then put to the Accused that he made the request because he was not aware that Losco had any buprenorphine in his possession. He responded that he knew that he could get heaps of drugs and that was why he asked him “Can you get them”. It was then put to him that if he knew that he could get them why did he put Losco in contact with Glen. He stated that it was to get them cheaper and to get a good price. He said Losco stated he can get them cheaper and “why are you going that way.”[3]

    3. Liberato v The Queen (1985) 159 CLR 507 at 515 (Brennan J); De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100 at [12] (Kiefel CJ, Bell, Gageler and Gordon JJ).

59. The Accused admitted that he asked Losco to get a “thrashie” or “fresher” which referred to a mobile phone. [4]

    4. T 60.33-.36.

60. The Accused conceded that he provided Losco with the mobile phone number for “Glen.” He stated that this was because he wanted him to obtain the buprenorphine from that person or if he had some himself.

61. Further into the call, Losco discusses obtaining two boxes at $250 each from a person in Warilla which the Accused tells him to grab.

62. The Accused and Losco then have a further discussion recorded in Product Number 2274 in which the following is said:-

A: Bro can, can you get any girls to come and do a visit as well or nah?

L: Oh mate I’ve got, I stay away from them all now hey.

A: What about a guy? Can you get any guy? A normal guy to do a visit or nah? Or is that too much, forget it? Huh?

L: Yeah probably. Oh no, actually I can probably get – oh a chick to do it, but she’s fuckin’ a bit fried at the moment. The one that used to them for me…

A: No, no, no, nah. Nah she can’t be too…

L: …she’s a bit fried you know?

A: Is she? No that look…

L: Yeah.

A: …just, I’ll leave that with you all right?

L: Yeah.

A: You let me know you know what you mean? Listen I’m happy to pay them…

L: Yeah.

A: …I can help them out, you know.

L: Yeah of course.

A: Fuckin’ oath, you know.

L: Yeah.

A: Well the boys (unintelligible)…

L: But…

A: …because the guy, the guy that’s going to get a visit, he’s normal man, the guy’s normal you know what I mean?

L: Yeah.

A: Like he doesn’t want no one fried mate you know

L Yeah, yeah a hundred percent.

65. In cross-examination it was put to the Accused that he asked for girls to visit to deliver drugs to gaol. He denied that stating “No, it was just – you know, send some girls in and just for laughs, you know. That is all it was.” When it was put to him that he was making that evidence up, he stated that “Well it wasn’t exactly that way but it was more, you know, with girls coming to visit someone else and come and see me as well.” When it was put to him that he was happy to pay them as well he stated that it had happened in gaol before. He further denied making it up.

66. The Accused accepted that he then urged Losco to call Glen Baker and to tell him that he was one of T’s friends. So much is apparent from the balance of the recorded conversation of Product Number 2274 where the following in exchanged:

A : Yeah, yeah but listen, to what I’ll do is I’ll send you a number like in five minutes…

L: Yeah. Yeah

A: Okay? So you know what I want don’t you?

L: Yeah.

A: Just you know if you can get me them and get me them and I’ll give you a call, I don’t’ know, fuckin’…

L: Yeah, no worries

A: You know what I mean? Yeah now listen, when you ring this Glen cunt, Glen Baker to meet up with him…

L: Yeah, yeah.

A: Um, he is cool all right? I think he’s just a junkie all right?

L: Yeah.

A: When you meet up with him, ‘cause my mates have been meeting up with him. Just tell him “Look he’s one of T’s friends, he rang you up” you know what I mean?

L: Yeah.

A: Just then (unintelligible) I’m from the area bro…

L: Yeah. Yeah.

A: … (unintelligible) you know what I mean ?

L: Yeah sweet, sweet. So one of Pete’s friends I say?

A: No, no T. T’s friend, you know, yeah.

L: Yeah all right.

A: Just one of T’s friends, all right?

L: Yeah, yeah sweet.

67. The Accused accepted that he wished to bring the drugs in slowly because it would be difficult to bring the drugs into gaol. He stated that he was aware that it was not a simple task.

68. His attention was drawn to the statement on 21 December 2018 from Product Number 2274 where it was recorded:

“Or is that too much forget it?”

This was in the context of Losco being asked to obtain a normal guy to do a visit. The Accused rejected the suggestion that he was conscious that it was a difficult task to fulfil the request. He stated he can’t remember why he asked him but he knew what he was capable of and that was the reason he rang him. [5]

5. T 65.40-.48

69. The Accused rejected that it wouldn’t be completed easily, stating that for Losco it would be. He stated that Losco had ice ready to go and with the rest of the stuff “he always had things lying around.” [6] He described Losco as a big mover of drugs. When it was put to him that he wasn’t aware of the levels or types of drugs that Losco has, he stated that he was aware as he had letters through friends in the gaol system.

    6. T 64.32-.34.

70. Thereafter, the Accused’s attention was drawn to a SMS text message to Losco, being Product Number 2290, that he accepted he sent at 7.24pm on 21 December 2018. [7] That SMS message was as follows:

Hey brother his name is Glenn and use t As a name and I spoke to him OK and see how you go get 100 Or the more the better but I will bring in slowly also 2 eight ball just get ready also chase up some One for visiting leave Up to U love u mad cunt

7. T 64.40-.44.

71. The Accused accepted that the reference to eight ball was a reference to an eight ball of methylamphetamine.

72. His attention was then drawn to a text reply, being Product Number 2295, from Losco in which he stated:

“All right bro see how I go ok”

73. It was put to the Accused that he would be aware that that Losco wasn’t ready to fulfil the request. He responded stating that that was not the way he saw it but rather he interpreted it as ‘“See how I go” like “I’ll do it for ya”’. He described that as how they spoke to each other. [8]

    8. Exhibit E tab 4

74. The Accused’s attention was then drawn to an SMS from Losco to the Accused sent at 7.46 pm, being Product Number 2300 which stated:

…but yeh I’ll chase it all up ok

75. It was put to the Accused that Losco meant that he would make the inquiries on the Accused’s behalf. He rejected this stating it meant “he’ll drop off the stuff to our friend” before stating it meant “I’ll chase it up for ya.”

76. The Accused’s attention was next drawn to the SMS message sent by him to Losco on 23 December 2018 being Product Number 3443 where he stated:

Hey brother if you can answer or just to let you know if you can 2 ball for cricket have ready and 2 packets smoke white ox 50 gramers also I know it’s a big arsk and if you can get the burp what ever you can for starting point u know or I ring u explain to you my mate will pick it up do you want me to give number Or you ring him is that best I appreciate it alot it will come back

77. The Accused stated that he knew that Losco had the stuff and he was basically asking him to get them ready so he could give it to the person who would pick it up. He also stated that if he could get more “bupe” then he should grab them. It was put to him that he would only ask that question if he knew that he didn’t have the buprenorphine. He stated that he knew he had it and he definitely had it. [9] When it was put to him that he was making this evidence up, he stated that he wasn’t making it up and there had been other discussions prior to that through letters and people. [10]

    9. T 65.19-.25.

    10. T 66.26-.28.

78. It was next put to the Accused that he requested Losco to deliver drugs to his friend. He stated that he knew Losco was on parole and that was why he didn’t want them delivered directly and told him to drop them off. [11]

    11. T 66.20-.32.

79. The Accused’s attention was next drawn to an SMS message sent to Losco on 23 December 2018 at 7.33 pm, being Product Number 3444, where he stated:

My number is Off now bud but give U a ring tomorrow get a thrasher please don’t be lazy and fucking to much.

80. It was put to the Accused that when he said don’t be lazy he meant “hurry up and get me these drugs.” He responded stating that Losco was “just one of them lazy guys that he‘s just lazy. If you know him in general, he’s just a lazy guy.” He stated that Losco’s reply at 10.51pm on 23 December 2018, being Product Number 3508, stating “Sorry, cuz. I’ve been gettin pretty fukd up at the moment, ay” indicated that “He’s always stoned” or “He’s like one of them, like I said, lazy guys.” It was then put to the Accused that he knew that he needed to urge him to further complete this transaction. He responded that he was always been a lazy guy. He then accepted that the principal point to the messages was to hurry him to get the drugs handed to his mate so he could bring them to him in custody, stating that he had them with him “so why not give them to you.” [12]

    12. T 66.40-.43

81. At 6.30pm on 24 December 2019 Losco sent an SMS, being Product Number 4223, to the Accused stating “Ring.” The Accused accepted that this was so and that one minute later he called Losco and as part of the conversation, being Product Number 4231, he stated:

A: Um, yeah any luck? Like…

L: Yeah I’m, I’m trying to get, the ipsprays a bit cheaper for you hey?

82. Initially the Accused stated that the reference to any luck was a reference to Losco seeing his friend. When Losco’s response was put to him, the Accused stated that he meant he was trying to get them a bit cheaper. He thereafter stated that Losco had some buprenorphine but wanted to get more of it cheaper. It was put to him that he didn’t know what he had and he just knew that he was negotiating prices.

83. Further into the intercepted conversation of 24 December 2018 commencing at 6.31pm, being Product Number 4231, the following is recorded:

A: Yeah, so basically is that all right? Like two balls…

L: Yeah.

A: …like I’ll fix it up hey, don’t worry…

84. It was put to the Accused that he had already asked for methylamphetamine on 21 December 2018 and he felt the need to make a further request. He responded stating that he was not requesting as he knew that Losco had the drugs but was rather was asking how much they were to buy them off him and whether he could give him a frame for when they would be ready.

85. Further into the same conversation the following is recorded:

A: Um all right, but, but you know the strips? The strips (unintelligible) um, like you know the number that I gave you?

L: Yeah.

A: He’s, he’s always got them this cunt, all right?

L: All right.

A: But he wants twenty, he won’t budge with it, you know.

L: But he’s but he’s constant…

A: Huh?

L: …he’s persistent.

A: He’s consistent, he’s always got, you know what I mean?

L: He’s always go, all right, all right.

A: Yeah. Now I’ll leave that with you, all right?

L: Yeah.

A: You know what I mean? Um, if you can get them cheaper…

L: Yeah I’ll, I’ll try and get them (unintelligible)…

A: …but bro just grab as much as you can, man…

L: Yeah.

A: …like you know what I mean? Fuck, you know, it’s always going to come back to you anyway, you know.

86. It was put to the Accused based on him accepting that he asked “just grab as much as you can” that if he was aware that Losco had what he needed he would not have asked. He responded stating that he knew he had some but asked if he could grab as much as he could. [13]

    13. T 66.45-67.23.

87. The conversation thereafter proceeded to record the Accused and Losco stating:

L: I, yeah, I, I got offered a, like a couple of boxes the other day like I told you, like for two fifty a box, so I’ve…

A: Yeah.

L: …I’ve, I’ve…

A: Yeah that’s cheap. If you can get them…

L: ...I contacted the bloke again. I said “Fuck are they still going or what?” Oh and he…

A: Yeah.

L: …was going to find out for me.

A: Bro just tell him, you know tell the guy if he goes “No I’ve sold them.” Just say “Bro, I’ll buy them every time you’ve got them” you know what I mean?

L: Yeah, yeah I know, fuckin’ oath.

A: Just tell him that so you can a regular thing going with him you know.

L: Yeah definitely.

88. Later in the conversation the Accused is recorded as telling Losco:

But um listen, don’t, don’t stress with the bupe, but, but be on the case please man, ‘cause you know ‘cause it’s a big seller huh…

89. It was put to the Accused that he wanted Losco to obtain the buprenorphine because he knew he did not have it. He responded stating “I don’t know if he knew but, you know what I mean, like obviously, you know he buys and sells.” The Accused accepted that he wanted Losco to grab what buprenorphine he could and that he intended to sell the buprenorphine he received in custody if he received it. He also accepted that he intended to sell in custody what methylamphetamine he received.

90. The Accused sent an SMS message to Losco on 24 December 2018 at 7.19pm, being Product Number 1953, in which he stated:

His name is JB [**** *** 865] OK tell him to meet up U got to give him some thing U know now On Wednesday please 2 pouches give just like that and 2 separate eye in 2 different balloons Ring U soon

91. In cross-examination the Accused accepted that his intention was to put Losco in touch with JB so that he could deliver the drugs, being ice and buprenorphine in custody. [14]

    14. T 71.32-.36

92. The Accused and Losco had a further conversation on 24 December 2018 at 8.12pm being the subject of Product Number 4277. In that conversation the recording states:

A: Fuckin’ the smokes, get ‘em like that and the balls…

L: You want me to squeeze, squeeze ‘em all up, anything?

A: No, no, no just one each, just…

L: All right, all right.

A: …different, so in different packaging, (sounds like) I don’t know.

L: Right, yeah, and the allbay (ball), the allbays I’ll just make sure they’re fuckin’, they’re wrapped three, three times…

A: Huh?

L: …all right, yeah.

93. The Accused was asked that that was a discussion as to the best way to package the methylamphetamine. He responded stating that Losco had the stuff there ready to go and he was asking the best way to do them. It was put to the Accused that he essentially wanted them in two balloons. He responded that it was Losco that was saying about two balloons. The Accused accepted that further in that call he reminded Losco that he had provided him with JB’s number, accepting that Losco was going to drop them off and that he needed the number to do that. [15]

    15. T 72.41-.46.

94. On 26 December 2018 at 6.29pm, being Product Number 2547, the Accused sent two SMS messages to Losco the first at 6.29 pm which was to ask:

Hey brother how did you go did you see our other mate for me

95. The second at 7.53pm, being Product Number 5633, asked:

Ring me please mad cunt

96. At 8.09pm, being Product Number 5663, Losco responded by SMS to the Accused stating:

Hey bro.. yeah sorry.. I’ve been a fried chicken all day like wow ay.. if ya can sent me the lads number n tell him I cal in the morning n have the package ready for him

97. After stating that he would send it through via a text at 8.19pm (Product Number 5664), the Accused did so at 8.43pm in an SMS (Product Number 5669) to Losco stating:

Hey bro his name JB [**** ***766] OK thanks matie make sure you bag Up the eyes difrent but the smoke just like that OK and just wondering how much do you sell ball these days

98. At 9.14pm Losco sent an SMS (Product Number 5670) to the Accused stating “550” to which the Accused responded by SMS in reply at 9.41pm (Product Number 5698) stating “All good bro love ya.”

99. The Accused stated that he provided the details because JB changed his numbers all the time and with the amount that it was what he was charging and had to put into his account.

100. At 6.16pm on 27 December 2018 the Accused sent Losco a SMS message, being Product Number 6330, stating:

OK thanks matie try and get burp for me and I will let you know what else in future

Love you ur the best don’t forget to get a thrasher for us to

101. On 27 December 2018, there was a telephone conversation between the Accused and Losco commencing at 6.20pm, being Product Number 6331, which included the following:

A: Yeah. Yeah all right, sweet, so what are you going to give him – say two, two ball and two smokes yeah?

L: Yeah and I’ve got um, I’ve got I think eighteen or nineteen ipstrays (strips) at the moment

A: Huh?

L: I, I’ve got eighteen or nineteen ipstrays at the moment, I got em’ for ten bucks each, so…

A: Yeah all right, so just hold onto them you reckon or, you know.

L: Yeah. Yeah I’ll, I’ll just, I’ll try and get it, get it up to a decent amount, you know what I mean ?

A: Get something more – yeah, yeah keep on getting more, yeah.

L: Yeah.

A: Yeah um, um yeah and listen ah, ‘cause this is going to be a regular thing, you know what I mean…

L: Yeah.

102. In cross-examination, the Accused accepted that the reference to strips was to buprenorphine and that it was to be included in what Losco was to give to JB.

103. Further into the conversation, the recording was as follows:

A: …another question um…

L: Yep

A: …have you got, like work on this right , get someone to see if you can get someone to, like I’ll show ‘em how to get in here to put the stuff, stuff you know what I mean, we’ll pay for it, you know.

L: Hey?

A: Like have you got anyone who can come up here and sort of like drop off stuff, you know what I mean, outside for me?

L: Yeah, yeah.

A: Yeah.

L: All right.

A: Like you know see, see if you can work, if you’ve got someone that you know, from Wollongong…

L: Yeah.

A: …that wants a, do some drop-drives, you know what I mean?

L: Yeah, I’ll see what I can do hey.

A: I can stash it somewhere you know what I mean, yeah.

L: Yeah.

A: Yeah and also visits – see if you can get someone for visits, you know what I mean, to keep…

L: Yeah.

A: …people in mind bro, you know what I mean, yeah.

104. In cross-examination, the Accused stated that he asked Losco if he knew anyone, not that he was telling him to do it. He added that Losco had JB and that this was in case JB couldn’t do it so Losco had another way. He stated that he didn’t form the view that Losco needed to make further arrangements at his request, adding that Losco had tried to help him out and it was something they had always done together. [16]

     16. T 73.24-.34.

105. On 28 December 2018 at 8.17pm in, being Product Number 6777, Losco sent an SMS to the Accused stating:

Yeh bro I’m right just got bak.. but haven’t heard from jb

106. At 8.17pm, in Product Number 6778, the Accused sent Losco an SMS stating “I’ll ring him soon ok” to which Losco responded at 8.19pm (Product Number 6780) “OK mad thanks.” At 8.37pm the Accused sent a follow up SMS (Product Number 6791) stating “Try again said him a message please cause Monday it should be here thanks matie.”

107. In cross-examination it was put to the Accused that he was in this conversation telling Losco that he wanted the drugs in custody by Monday. He stated that he knew how lazy he was and that is why he said to try him again. The Accused stated that he wasn’t frustrated by how long it was taking but was basically saying “What’s going on?” because he knew he was lazy. He stated that Losco was “always lazy” and “palms things off when he’s off his head.” [17] When asked whether he felt the need to stir him into action he stated, “Yeah, some – well I was just, you know, it was a conversation that we always have, like, you know, ‘Come on man.’” He added that he knew it would happen as Losco was a man of his words. [18]

     17. T 75.22-.29.

     18. T 76.06-.11.

108. Thereafter at 8.27pm on 28 December 2016, in Product Number 6792, Losco sent an SMS to the Accused stating in response to the request the Accused made “on tknit bro.” At 8.28pm, in Product Number 6793, the Accused responded by SMS stating “Thanks.”

109. At 8.53pm on 28 December 2018, in Product Number 6798, Losco sent an SMS to a number supplied for JB stating “Hey brother was doin.. wen u comin outto c me.”

110. At 7.14pm on 29 December 2018, in Product Number 7310, the Accused sent an SMS to Losco stating “Any news I said U his number again”. Losco responded at 7.16 pm in Product Number 7312, “Bro his phone is off mate” and ten seconds later in Product Number 7313, “I been tryin to get hold of him.” The Accused responded at 7.18pm in Product Number 7326 with an SMS to Losco stating “Just getting his other number As well OK for you hold On I message you soon other line with mate.” Thereafter, he responded at 7.24pm on 29 December 2018 in Product Number 7334 providing two numbers for JB [19] adding “try now please and me back.” This was followed by a SMS messages at 7.27pm in Product Number 7335 stating “His waiting for your call now” and at 7.29pm in Product Number 7336 stating “Tell text or call one one them he should get thru”. At 7.52pm in Product Number 7338 Losco sent an SMS in reply stating “ok will do bro.”

     19. T 76.13-.15.

106. At 7.52pm on 29 December 2018 in Product Number 7337 Losco made contact with the number for JB and was told that he would be back in 5-10 minutes. Losco asked that he call him back.

107. There were follow up SMS messages between the Accused and Losco about making contact with JB. At 7.53pm in Product Number 7340 Losco sent a SMS to the Accused stating “He wasn’t there but be bak in 15 n I left msg to call me bak.” At 8.05pm the Accused responded by SMS in Product Number 7344, “Ok thanks brother get it to him today please tell him As well mad let me know.” This was followed at 8.49pm in Product Number 7364 with the Accused sending, “His waiting apparently his got 2 phones on its cause I have my other mate in other house On stand by.”

108. At 9.08pm on 29 December 2018 in Product Number 7373, Losco and the Accused had a phone conversation as follows:

A: Hey listen, ring him and tell him to come see you man, you know.

L: Yeah, yeah I’ll ring him again now, all right, I’ll just ring him now.

A: Can you ring him now please because I’ve got…

L: Yeah, yeah I’m ring, I’m going to ring him right now.

A: Yeah thanks Rob ‘cause I’ve got my um, other friend on the other line you know what I mean, you know that (unintelligible) you know?

L: Yeah sweet I’ll call him right now and fuckin’ tell him…

114. The Accused stated that in this conversation he was trying to find out what was going on and he wanted a call back or he would call Losco.

115. Losco made contact with JBs number at 9.15pm on 29 December 2018 recorded in Product Number 7381 and discussed arrangements to meet at Kanahooka.

116. At 9.21pm on 29 December 2018, recorded in Product Number 7384, there was a further telephone conversation between the Accused and Losco in which Losco advised the Accused of the call he had just made as follows:

A: Did you go and see him yet?

L: Yeah, I just spoke to him, hey, he said he’s going to call me back I’m five minutes. I said, “Look the boys, the boys down Nowra want you to come and see me tonight, you know?”

A: And what’d he say?

L: He said, “Oh, yeah, I’m just waiting on something,” rah-rah-rah. “Fucking, I’ll call you back in five minutes.” All right.

A: Fucking idiot, this cunt, man.

L: If he doesn’t call me back in five minutes fucking I’ll, I’ll harass him, don’t worry, man, I’ll make sure.

A: Yeah, can you please, man, because…

L: I got everything ready for you, so you know.

A: You know, we’re waiting on the guy to bring it in, you know what I mean, that’s all.

L: Yeah, yeah, I know (sounds like) youse want, (sounds like) youse want it for fucking New Year’s, mate, you know?

A: Yeah, I know. I know it’s not you, I’m just saying like…

L: No, no, yeah, I know.

A: (Unintelligible)

L: Yeah.

A: I’ve got my other, I’ve got my other mate in the other wing, you know what I mean?

L: Yeah.

A: He’s, he’s sending me messages and saying oh, he’s waiting on him. Like fuck, man.

L: Yeah.

A: You know?

L: Like fucking this cunt never told he had a different number yesterday either, you know what I mean? Like if he had have I wouldn’t…

A: Huh?

L: If he had have told me he had a different number yesterday I would’ve been ringing that number too, you know?

A: Yeah, no, what a fucking idiot, you know what I mean? Yeah, what a goose.

L: Yeah.

A: Anyway, please Rob, if you can ‘cause I’m going to be offline, brother.

L: Yeah.

A: Um, or send me a message anyway.

L: Yeah.

A: I’ll get it in the morning or something. But can you um, please chase him up, man, you know?

L: Yeah, mate (unintelligible) day.

A: Yeah, just tell him, “Listen mate, I have to see you tonight, man. You come and see me.” You know?

L: Yeah, sweet, yeah I’ll…

A: Just, just put it on him, I’ll, I’ll let his mate know now, you know what I mean? I’m going to say “Listen my mate’s fucking waiting on your mate.” You know what I mean?

117. In cross-examination the Accused stated that he wasn’t desperate but was waiting to see what was going on. It was put to him that given the number of phone calls and text messages over the 29th he was certainly anxious that it wouldn’t be finalised unless he intervened. The Accused stated that Losco was lazy and JB hardly knew him. He denied that he needed to urge them on but was rather just saying “what’s going on?”

118. Further in the same conversation, the Accused accepted that Losco stated that he had 19 strips but didn’t want to pay $20 each but wanted to source them for $10 each. He stated that Losco didn’t want to source them at $20. The Accused accepted that he told Losco to contact a person known as “Olivia” who had some friend who had access to buprenorphine. He stated that he asked Losco if he wanted to ring her.

119. On 29 December 2018 at 9.33pm in Product Number 7389, Losco called the number for JB and spoke to a person who identified himself as Joe Boy. I accept this was JB. There was further discussion about the arrangements for pick up from Kanahooka Road. Thereafter, Losco sent an SMS to the Accused at 9.45pm in Product Number 7392 stating “All good bro he comin soon ay.” The Accused responded at 9.48pm to Losco, which was recorded in Product Number 7393, stating “Ok mad. Let me know when done” with three grinning emojis.

120. There were multiple calls between Losco and JB about their meet up and his subsequent arrival at 11.28pm on 29 December 2018 (Product Number 7419), 1.03am on 30 December 2018 (Product Number 7456) and 1:13am on 30 December 2018 (Product Number 7458).

121. On 30 December 2018, the Accused sent Losco an SMS at 7.07pm, in Product Number 7769, stating “All good bro did you see him last night.” Losco responded at 7.08pm in Product Number 7770 stating “Yeh bro 2 am this morning the funny cunt.” Losco then responded at 7.09pm in Product Number 7772 stating:

They wrapped in a satchel then white garbage bag then blue tape separate n then together in white garbage bag n blue tape again

122. Losco sent a further SMS at 7.09pm, in Product Number 7773, stating “N 2 50g oz ok.” “Oz” was clarified to be “Ox” (Product Number 7774). The Accused accepted that he understood this as a reference to the two balls of methamphetamine that he requested were wrapped in a white satchel, then in a white garbage bag separated by blue tape with a white garbage bag and blue tape again. The Accused accepted that this also included two 50 gram portions of tobacco.

123. Following this, the Accused accepted that he replied by SMS at 7.11pm , being Product Number 7775, stating:

His fucked that guy mad love u have a great New year’s Day I ring u after that and give U Olivia number for the strips Or bank details

124. On 1 January 2019 at 5.33pm, in Product Number 8646, Losco sent an SMS to the Accused stating:

Bro all good?? Also Olivia has got the chick that set me up the other day to contact me for her.. I rather u give me her number or something like that...

125. The Accused responded at 6.18pm, being Product Number 8701, stating:

U to happy new year to don’t see anyone only Olivia *******288 I told her come alone and keep quiet give her 500 for her to get me burp and when she gets to let me know thanks brother 

126. The Accused accepted that he did this because Olivia has no money and he asked Losco to give her $500 and “she will basically help him out.”

127. The Accused accepted that the requests he made required assistance of third parties and it was hard when he was in gaol. When it was put to him that at the time of his first request he knew that Losco needed to obtain that particular substance, he stated that he knew that Losco had buprenorphine because he smoked himself but he knew if he ran out then maybe he could get it from someone else. [20]

Submissions

20. One of these had been previously provided in Product Number 5669 on 26 December 2018 at 8.43 pm.

Crown Submissions

128. The Crown accepted that Losco was an active supplier of prohibited drugs at around the time of the matters before the Court. It accepted that each and every request to purchase prohibited drugs from a dealer could not amount to an incitement as that would lead to an absurd situation where every purchase, particularly for personal use, would be penalised as a supply.

129. The Crown submitted that the evidence in this case falls outside that situation. By reference to other transactions that Losco was involved in the subject of [4] of the Agreed Facts, the Crown accepted that that those supplies would not involve incitement as they were quickly finalised and the purchaser must have contemplated that Losco was ready willing and able to supply the requested drugs forthwith given the simplicity of the requests and the availability of the drugs requested.

130. The Crown argued that in the current matter, the Accused incited supply in both instances as he could not have understood Losco to be ready willing and able forthwith to supply him with the buprenorphine and methylamphetamine.

131. Attention was drawn to the Accused’s evidence that this was not a simple request. This was demonstrated by the fact that the Accused was in custody, and was aware that he required the assistance of third parties either through his or Losco’s associates. This, it was said, led to a difficulty in finalising a quick and easy drug supply such that the Accused urged Losco to supply him with the drugs. In this respect reliance was placed on the following:

1. On 21 December 2018, (Product Number 2274), the Accused is said to have requested to arrange girls for a visit, which the Crown says was for the purposes of bringing drugs. It further submitted this was evidenced by Losco’s apprehensiveness about the proposal to bring in girls, followed by the immediate proposal to bring in a male and the Accused’s statement “is that too much.” In this respect the Crown asserts that the Accused’s evidence stating that this was for “laughs” would not be accepted.

2. Also on 21 December 2019 (Product Number 2290), the Accused sent a message to Losco asking to chase up someone for visiting by stating “leave up to you”. The Crown submitted that this was further evidence of knowledge that Losco was not ready or able to supply the drugs forthwith as a courier first need to be arranged.

3. On 23 December 2018 (Product 3443) where the Accused asks Losco “if you can answer or just to let you know if you can”, the effect being to supply him with two balls of methylamphetamine and buprenorphine. The Crown asserted that this demonstrated the Accused’s knowledge that the supply was not a simple one.

4. On 24 December 2014 (Product Number 4260) the Accused provided contact details of JB. The Crown submitted the Accused urged Losco to meet this person and supply him with the buprenorphine and methylamphetamine to be delivered by that person to the Accused. At 8.12pm on the same day (Product Number 4277) the Accused checked to see that Losco had received JB’s contact details that he had earlier provided.

5. On 26 December 2018 (Product Number 5584) the Accused sent a further SMS to Losco. The Crown asserted this amounted to conversation in which the Accused asks Losco whether he had “gone to see our other mate” being a reference to JB. Losco informed him (Product Number 5663) that he had not but would do so the next morning. The Accused provided a second contact number (Product Number 5669) for JB and reminded him to make sure he bagged the methylamphetamine differently.

6. On 27 December 2018 at 6.17 pm (Product Number 6328) the Crown asserted that Losco had made contact with JB by telephone and put in place plans that would ultimately see seven grams of methylamphetamine passed to him in the early hours, with the last call with JB being on 30 December 2018 at Product Number 7458.

7. The Crown further relied upon Product Numbers 6777, 6780, 7312, 7313, 7326, 7334, 7335, 7310, 7373 and 7384 as establishing repeated request to Losco by the Accused about his contact with JB and as further evidence that Losco was not ready willing and able to assist with the supply of buprenorphine and methylamphetamine.

132. In relation to the buprenorphine, the Crown submitted that the evidence established that the Accused needed to source that drug in order for it to be supplied to him. It argued that the Accused’s knowledge that that drug had to be sourced could not give rise to a situation that the Accused understood Losco to be ready, willing and able to supply him with that drug. Specifically the Crown drew attention to the Accused providing contact details for a number of sources such that it could not give rise to the understanding that the supply of that drug would be a simple request. Specifically, the Crown drew attention to the following:

1. On 21 December 2018, at 7.11pm at Product Number 2274 the Accused asked Losco to contact Glen Baker who he advised “does bupe” unless he could get some. The Accused was said to have urged Losco to grab some. The Crown contended that the evidence establishes that Losco was not in possession of the buprenorphine at the time and was required to source it at the Accused’s urging.

2. On 24 December 2018 at 6.43pm at Product Number 4231, the Accused asked Losco if he was able to obtain buprenorphine and was informed that he was attempting to obtain the drug at a cheaper price. The Accused was said to have urged Losco to supply him with as much buprenorphine “as you can afford” and again requested the supply of two balls of methylamphetamine “if you can”.

3. On 27 December 2018 at 6.20pm at Product Number 6331, the Accused made a call to Losco and again requested 2 balls of methylamphetamine and asked that Losco hold onto the buprenorphine accepting that a further amount should be obtained. The Crown contended that the Accused sought a larger amount of buprenorphine be obtained.

4. At 29 December 2018 at 9.21pm at Product Number 7384, the Accused informed Losco that he had sourced a further supplier of buprenorphine through a person named Olivia. On 1 January 2019. In Product Numbers 8646, 8701 and 8732, the Accused had a further text message conversation with Losco. Losco said, "Bro, all good?? Also Olivia has got the chick that set me up the other day to contact me for her. I rather you give me her number or something like that." The Accused replied, "Don't see anyone. Only Olivia," and provided her number and informed Losco that he had told Olivia to come alone and give her $500 for the buprenorphine and that she should let him know. Losco replied, "Okay brother will do for sure.”

133. In conclusion, the Crown submitted that the evidence established that the Accused incited the supply of both drugs from Losco.

Defence Submissions

134. The Defence submitted that incitement was an offence ultimately based in intention such that the focus in incitement cases is not on whether or not the offence is committed. It was submitted that it the offence would be completed at the time that the words or acts are done or uttered with the requisite intention to incite. This was said to be the proper distillation from Hodgson JA's judgment in R v Eade, such that there will be no intention to incite if the person is understood to be willing and ready to comply with the request. To this end, it was submitted that it is not a question of whether or not the request is attended by difficulties. It is not a question of whether or not the person has the drugs in their hands such that they can simply be handed over in that moment. It is rather a question of whether or not the accused believed it necessary to incite or to urge.

135. The Defence submitted that where someone who the Accused believed was in the business of supplying substances in question was approached, the Crown needed to prove that the Accused intended to incite.

136. The Defence accepted that if Losco showed some reticence then the Accused would then know that by making further request thereafter he would have gone beyond simply asking him to do that. It was submitted that in this case there was no reticence on the part of Losco. At one point the Defence accepted that reticence was not required but asserted that in this case the inference was that the only reason Losco was contacted was that he was thought to be a person who could do exactly what the Accused wanted and hence there was no need to persuade him.

137. Referring to R v Eade, the Defence submitted that the appeal in that case was unsuccessful as there was no evidentiary base for suggesting the reasonable possibility that the Accused thought that it wasn’t necessary to do more than ask or no need to persuade or cajole or whatever the case may be to get the agreement to commit the offence. It was submitted that there was some similarity between incitement and causing, at least in the sense that it requires more than a request that somebody do something if one expects that person is in the business of doing.

138. The Defence contended that the fact that the Accused was involved in the arrangements as to how the offence in question was going to be committed, is not evidence of the Accused inciting the commission of the offence. In this sense, the Defence argued that the issue is not whether or not the Accused had to persuade the person how to commit the offence. In any event, it was submitted that there was no reluctance both as to the commission of the offence or as to how they might be committed. The Crown's onus was to prove beyond a reasonable doubt that the only reasonable inference is that the Accused believed it necessary to incite or to urge Losco to do the act in question.

139. In supplementary submissions, the Defence accepted that where the Crown relies upon a course of conduct that includes both a request and how the offence in question might be committed the logistics of the proposed offence might amount to incitement to commit the offence even if the initial request did not depending on the circumstances. Ultimately it was submitted that the question is the same whether or not those representations were made by the Accused with the intention of inciting, urging or persuading the recipient to commit the offence. It was argued that in either instance, none of the representations were accompanied by an intention on the part of the Accused to ‘incite” Losco to commit the offence because such was never thought necessary. This was so as on the available evidence. It was submitted that there was an overwhelming inference that the Accused believed Losco was ready, willing and able to facilitate the supply of drugs, including whatever fashion might have been discussed or agreed as between the two. It was submitted that there was not a hint of resistance from Losco at any stage and indeed he was actively involved in suggesting the means by which the supply in question might be effected from the outset. It was pointed out that he volunteered that he had been recently been “offered” a quantity of buprenorphine and indicated that he will call his contact. Before the Accused ever makes any request for buprenorphine he indicates that Losco might know the source he is suggesting, being “Glen”, such that it clearly indicates he was of the view that Losco likely had his own sources. Accordingly Losco was not incited in any sense of the word because at no stage was it necessary for the Accused to incite him.

140. In summary, the Defence submitted that if it is a reasonable possibility that the Accused did not intend to “incite” Losco to commit the offences when he first asked him (because he did not need to) then why would any different conclusion be reached as a consequence of the later discussion as to how Losco might do so. In other words if incitement was not necessary to get Losco to agree to supply the drugs (because he was thought to be ready willing and able to do so) and Losco then clearly and enthusiastically confirms that belief rhetorically, why are subsequent conversations about how that might be achieve attended by an intention to “urge” or “persuade.” Reference was made to R v Eade at [51] that “incitement does not occur because it is not required.” It was argued that the issue here is not an objective interpretation of the act but rather the intention of the Accused.

134. The Defence submitted that the fact that the offence might take time to commit and may require the drugs to be sourced or may be difficult because it was necessary to smuggle the drugs in question into a correctional facility are not in themselves evidence that the Accused thought it necessary to “incite” Losco to do so. The result it was said would be different if Losco expressed some reluctance to do as asked and then had to be persuaded by the Accused but this was not such a case.

135. It was pointed out that the evidence here clearly establishes that the Accused was aware that Losco had smuggled drugs into correctional facilities previously, being both at Long Bay and Goulburn, and his evidence that to his knowledge Losco was supplying to both him and other inmates at the relevant time was not challenged. It was submitted that it could not be concluded that the Accused intended to incite in such circumstances. The Defence contended that there was not a hint of reluctance at any stage and there was no evidentiary basis for concluding that the Accused thought it necessary to incite urge or persuade Losco to do anything he was not perceived to be ready willing and able to do.

136. In oral submissions it was submitted that where an established drug dealer was involved, incitement could only arise in a circumstances where there was reluctance to commit the supply in question. The concept was said to be founded in the attempt to cause another to engage in a type of conduct that they might not ordinarily engage in, absent some urging or persuasion.

Consideration

Incite

144. Both parties relied on the decision of the Court of Criminal Appeal in R v Eade. [21] In that case the Court considered an appeal from a trial judge’s direction which was relevantly recorded by Hodgson JA (with whom Hidden J and Smart AJ) agreed as follows:

     21. T 80.07-.23.

[45] In summing up to the jury, the trial judge explained the meaning of the charge by saying "By 'incited' it is meant to urge somebody to do something". He also gave the following directions:

As to the second charge which relates to 12 September 1995, I identified the essential elements in regard to that charge that the Crown must prove as being that on 12 September 1995 the accused incited the witness named Unwin to supply a prohibited drug, namely Ecstasy, to him. I then went on to deal with those essential elements.

So far as that second charge is concerned, before you can return a verdict of guilty on it not only must you be satisfied that the accused incited the person Unwin to supply the prohibited drug Ecstasy, but it is implicit in you so concluding and necessary for you to be satisfied from the accused's words and actions at that time that he intended Miss Unwin to procure the prohibited drug Ecstasy by those words.

...

As to the second count the Crown says, well that emanates from the conversation that took place on 12 September and is shown on the video tape exhibit "G". The Crown says that that evidence is clear, that there is a conversation, that he is urging, and intentionally urging Miss Unwin to obtain some eccie tablets for him under the pretext of getting them and passing them on to Steve McClelland an officer in the Police Force.

[46] Mr Game submitted that there was no evidence that the appellant incited Ms Hart to supply drugs to Steve, and that accordingly, that being the only offence particularised, there should have been a directed verdict in favour of the appellant.

145. Hodgson JA then went on to state:

[51] I agree with Mr Game's submission that a mere request by an addict to the addict's supplier for drugs would not normally amount to the offence of inciting; but in my opinion that is not because the requested supply is to the person asking, but rather because in the normal case the element of incitement is absent. The element of incitement is generally absent in such cases because the drugs are being acquired from a person understood by the acquirer to be ready, willing and able to supply drugs forthwith to the acquirer; and incitement does not occur because it is not required.

[52] One would expect incitement to occur only in those cases when a person is seeking a supply of drugs from another person not understood by the former to be ready, willing and able forthwith to supply the drugs as sought. It is in those cases that the extra element of incitement might occur, so as to bring it about that the other person is induced to become ready, willing and able to make the supply.

[53] In Castle v Olen (1985) 3 NSWLR 26, Yeldham J was dealing with an alleged offence of supplying a drug of addiction within an extended definition of "supply" which included "causing ... exposure for sale". At p30, his Honour said this:

I am satisfied that more is required to constitute a "causing" than a mere request to a friend to obtain and sell to the person charged a prohibited drug. Certainly the evidence supports the view that the plaintiff sought from Pearce a supply to him for his own use. If the plaintiff had some authority over Pearce or was able to exert some pressure upon him to require him to procure the drug, then it would have been necessary to determine whether the fact that it was to be sold to the plaintiff for use by him and not for re-sale would, as counsel for the plaintiff submitted, affect the situation. In this respect the decision of the Court of Criminal Appeal in R v Coles [1984] 1 NSWLR 726 at 733-734, would be no doubt of relevance. I say nothing about that matter and leave it for determination when and if it later arises for consideration.

[54] I see no reason why, if a person urges another person to go and obtain drugs so that the drugs may be supplied to the person doing the urging, that cannot amount to incitement to supply.

[55] In the present case, there is no suggestion that Ms Hart was holding herself out to the appellant as ready, willing and able forthwith to supply ecstasy to him, or that the appellant believed she was ready, willing and able to do this, so that all that would be required, in the appellant's understanding, was a simple request. In circumstances where no such suggestion was being made, in my opinion there was no need to do more than the trial judge did to explain the offence, namely to draw the jury's attention to the meaning of incite, and direct the jury that this is what had to be found beyond reasonable doubt against the appellant.

146. Smart AJ whilst agreeing with the lead judgment added:

[59] In Young v Cassells (1914) 33 NZLR 852 Stout CJ, in an oft quoted passage said: "The word 'incite' means to rouse; to stimulate; to urge or spur on; to stir up; to animate." In R v Massie (1998) 103 A Crim R 551 at 564 Brooking JA, with whom Winneke P and Batt JA agreed, said of 'incite', "common forms of behaviour covered by the word are 'command', 'request', 'propose', 'advise', 'encourage', or 'authorise'". Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.

[60] It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all. In the present case the applicant urged Ms Hart to supply prohibited drugs.

147. I accept that to incite means to urge somebody to do something. So much was accepted by the Court in R v Eade and accepted by both parties. In particular I accept that the Accused’s words and actions at the time must be intended to incite the supply of the prohibited drug.

148. The conclusion drawn by Hodgson JA at [51] was that the necessary element of incitement is absent where there is a mere request by an addict to the addict's supplier because the drugs are being acquired from a person understood by the acquirer to be ready, willing and able to supply drugs forthwith. This rested on inferential reasoning.

149. That passage, however, made reference to “normally” and to a “mere request by an addict” and the ability to” supply the drugs forthwith.”

150. In contrast in this case, the Accused has admitted that in each case the drugs were being sourced for on supply to third parties to the correctional system and they were not to be supplied to him forthwith.

151. I do not accept that R v Eade is authority for the broader proposition that the mental element would be absent in circumstances where an Accused is communicating his request to an established or willing drug dealer on the basis that it can be inferred that the Accused believed that incitement is not necessary even though there was an intention for the request to be actioned. That proposition was disavowed in R v Eade at [54]. Nor do I see anything in the judgment that supports the proposition that to incite in such circumstances requires some reticence or reluctance on the part of the supplier where the drug is not able to be supplied forthwith.

152. In each instance in this case, what was sought was a supply to the Accused in a correctional environment. The Accused accepted that this was not a simple request able to be responded to forthwith but required the intervention of third parties. Plainly enough this was not a normal case as described in R v Eade.

153. I do not accept the Accused’s evidence that in the call on 21 December 2018 (Product Number 2274) he requested to arrange girls for a visit for “laughs”. That account of facilitating a visit by an unknown female which involved discussions of alternatives and provision of payment with was implausible. In my view the only reasonable inference open on a reading of that conversation was that the Accused was seeking Losco’s assistance for the purposes of facilitating someone bringing drugs into the prison. Losco’s apprehensiveness about the proposal was followed by the discussion of bringing in a male and the Accused’s statement “is that too much.” These comments in the context of the discussion as a whole satisfy me as to the Crown’s contention.

154. I accept that on 21 December 2018 (Product Number 2290), the Accused sent a message to Losco asking to chase up someone for visiting “leave it up to you”. I am satisfied that in its context the only reasonable inference at that time would be that the Accused was not aware that Losco was not ready or able to supply the drugs forthwith. The Accused’s evidence that he was aware of the levels or types of drugs that Losco had at time from letters and friends in the gaol system. That answer followed earlier questioning on the subject in which the Accused stated “he had the ice ready to go and, you know, what that’s what he usually does. That’s why – you know, the rest of the stuff, you know he always had things lying around”. When it was put to him that he wasn’t privy to the amount of drugs Losco had on hand at that particular time, the Accused stated, “I knew he was doing a lot because word got out, he passed messages in gaol, he just got out of gaol…he has always been a big – big mover into drugs.” At its highest that evidence suggests a rather imperfect source of knowledge, however even if accepted, it would indicate that the Accused thought Losco could supply the drugs but not forthwith.

155. On 23 December 2018 (Product Number 3443) where the Accused asks Losco if “you can answer or just let you know if you can” the effect being to supply him with two balls of methylamphetamine and buprenorphine, I accept that this demonstrated that the Accused knew the supply was not a simple one.

156. Commencing on 24 December 2014 (Product Number 4260) the Accused provided contact details of JB. I accept that the Accused urged Losco to meet this person and supply him with the buprenorphine and methylamphetamine to be delivered by that person. That was followed up by a call at 8.12pm (Product Number 4277) to see that Losco had received JB’s contact details that he had earlier provided and 26 December 2019 (Product Numbers 5584 and 5633) in which the Accused asks Losco whether he had “gone to see our other mate” being a reference to JB. Whilst Losco informed him that he had not but would do so the next morning (Product Number 5663), the Accused provided a second contact number for JB and reminded to make sure he bagged the methylamphetamine different (Product Number 5669).

157. On 27 December 2018 at 6.17 pm (Product Number 6328), I accept that Losco had made contact with JB by telephone and put in place plans that would ultimately see seven grams of methylamphetamine passed to him in the early hours, the last call with JB being on 30 December 2018 at product number 7458.

158. Product Numbers 6777, 6780, 7310, 7312, 7313, 7326, 7334, 7335, 7336, 7344, 7373 and 7384 include repeated requests to Losco by the Accused about his contact with JB and evidence that the Accused knew that Losco was not ready, willing and able to supply the methylamphetamine.

159. Even accepting the Accused’s account that Losco was lazy I am satisfied that the Accused’s communications were intended and did urge the supply methylamphetamine. I do not accept the Accused’s denial that he needed to urge them on and that he was just enquiring to say what’s going on. The text of the Accused’s communications the tone, frequency and timing satisfy me that the Accused was urging Losco to finalise the pick up by JB.

160. On this evidence I am satisfied beyond reasonable doubt that the Accused did incite Losco to supply methylamphetamine such that the first element of the offence in is established. The second element was not in issue and is obvious on the evidence.

161. I am satisfied that the offence has been proved beyond reasonable doubt and the Accused in Guilty of Count 2.

162. Further in respect of Count 1 I accept from the recording on 21 December 2018 (Product Number 2290), Losco was not in possession of buprenorphine at the time and need to acquire it. So much is apparent from the response of Losco when asked by the Accused if he could “grab some” for him, where he responds stating someone had previously asked him if he wanted two boxes and he would message the person after the call to get the two boxes. The Accused himself conceded that he thought Losco could acquire some. He did not indicate he thought he had some and there was no evidence to support a contrary belief. Mention in that call was made of Losco contacting a “Glen Baker” who could supply “bupe” at $20 each and the Accused accepted that he sent his contact details. Whether the Accused may have thought that Losco knew Glen Baker is of little consequence as there is no evidence Losco had any desire to contact him outside the Accused’s request.

163. On 24 December 2018 at 6.31pm (Product Number 4231) the Accused asked Losco if he had any luck and was informed that he was attempting to obtain the “ipstrays” at a cheaper price. The Accused said to Losco to supply him with as much “as you can afford.”

164. On 27 December 2018 at 6.16pm (Product Number 6330) being an SMS message the Accused asks Losco again to “Try and get burp for me”.

165. On 27 December 2018 at 6.20pm (Product Number 6331), Losco informs the Accused for the first time that he had eighteen or nineteen “ipstrays” and is told by the Accused to hold onto them, accepting that a further amount should be obtained. I accept that this evidences that the Accused sought a larger amount of buprenorphine be obtained.

166. At 29 December 2018 at 9.21pm (Product Number 7384), the Accused informed Losco that he had sourced a further supplier of buprenorphine through a person named “Olivia.” On 1 January 2019 (Product Numbers 8646, 8701 and 8732) the Accused had a further text message conversation with Losco concerning Olivia. Losco said, "Bro, all good? Olivia has got the chick that set me up the other day to contact me for her.. I rather you give me her number or something like that.." The Accused replied, "don't see anyone only Olivia" provided her number, and informed Losco that he had told Olivia to come alone, to give her $500 for the buprenorphine and that she should let him know. Losco replied, "Okay, brother, will do for sure.”

167. On all the evidence I am satisfied beyond reasonable doubt that the Accused did incite Losco to supply an unspecified amount of buprenorphine. In particular I am satisfied that Losco did not have any in his possession when the Accused first requested it. I am satisfied that when Losco acquired some strips the Accused sought that they be retained until more could be supplied. Quite apart from any other factor, the Accused knew that Losco was not ready willing and able to supply what he was seeking. It follows that the first element of the offence is established. The second element was not in issue and is obvious on the evidence.

168. It follows that I find this Count 1 proved beyond a reasonable doubt and the Accused is Guilty.

VERDICT

169. In respect of the indictment dated 31 August 2020, the Accused is found:-

1. Guilty of Count 1

2. Guilty of Count 2

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Endnotes

Decision last updated: 21 September 2020