R v Briggs
[2020] SADC 161
•19 November 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v BRIGGS
[2020] SADC 161
Ruling of Her Honour Judge Deuter
19 November 2020
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Accused pleaded guilty to Trafficking in a Large Commercial Quantity 4-Hydroxybutanoic Acid (‘GHB’). The accused was found in possession of just over 5.2kg, or 4.295 litres of GHB. Disputed Facts – whether the accused possessed all of the drug intending to sell it or whether he was only intending to sell just over 2 litres of the drug (his case).
Onus on accused to prove facts in mitigation in his case, on the balance of probabilities – onus not discharged – Accused to be sentenced on the basis that he was in possession of the GHB for the purpose of selling the majority of it.
Controlled Substances Act 1984 s4, s32(1), s44(1), s4(1)(a); Controlled substances (Controlled Drugs, Precursors and Plants) Regulations 2014; Criminal Law Consolidation Act 1935 s8 6A(1), referred to.
R v Storey 1989 1 VR 359; R v Olvich (1999) CLR 270, applied.
R v BRIGGS
[2020] SADC 161
Mr Briggs has pleaded guilty to Trafficking in a Large Commercial Quantity of a Controlled Drug, namely 4-Hydroxybutanoic Acid (‘GHB’). This is an offence against section 32(1) of the Controlled Substances Act 1984 (‘CSA’). He was arrested on 8 May 2019.
This is a ruling regarding the basis on which the accused should be sentenced. The accused was found in possession of just over 5.2kg (or 4.295 litres) of GHB stored in two large plastic containers, each containing 2.6kg of the drug, and two vials containing 3.19gms and 3.40gms respectively. By Part 1 of Schedule 1 of the Regulations to the CSA,[1] a large commercial quantity of GHB is defined to be a minimum of 2kg of the drug. By his plea of guilty the accused admits that he intended to ‘traffic’ the GHB by selling at least 2kg of it. The prosecution submits Mr Briggs should be sentenced on the basis that he intended to sell most, if not all of the GHB found in his possession. The accused says that he intended to use the difference in the amount over 2kg of the drug found in his possession for his own personal use, or for friends and that he did not intend to sell it. He submits that he should be sentenced on this basis.
[1] Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations Act 2014.
The accused has also pleaded guilty to Driving a Motor Vehicle Without First Obtaining the Consent of the Owner.[2] Mr Briggs was found by police under the influence of GHB, in the early hours of 8 May 2019. He was comatose and sitting on a motorcycle in the middle of a turn right lane. The motorcycle did not have number plates attached to it. The containers of GHB were found in a back pack that Mr Briggs was wearing.
[2] s 86A(1) of the Criminal Law Consolidation Act 1935.
Mr Briggs gave evidence before me on 30 June 2020 and I heard submissions from counsel on that day and on 30 October 2020.
Section 44(1) of CSA deals with ‘Matters to be Considered when Court Fixes Penalty’. Those matters include:
a) subject to sub-section (2), the nature of the substance or goods involved in the commission of the offence;
and
b) the quantity of the substance or goods involved in the commission of the offence;
and
c) the personal circumstances of the convicted person (being a natural person), including the circumstances relating to the person’s use (if at all) of any controlled drug;
and
d) in the case of an offence against Part 5 Division 2 or 3 –
(i)the commercial or other motives of the convicted person in committing the offence;
and
(ii)the financial gain that is likely to have accrued to the convicted person as a result of the commission of the offence (but this is not to be taken into consideration if that financial gain is the subject of an application under the Criminal Assets Confiscation Act 2005);
(da) [not relevant]
(e) any other relevant factor.
‘Traffic in a Controlled Drug’, is defined in s4(1)(a) of the CSA to mean:
a) sell the drug; or
b) have possession of the drug intending to sell it; or
c) take part in the process of sale of the drug.
The Director of Public Prosecutions contends that Mr Briggs intended to sell all or virtually all of the GHB found in his possession on 8 May 2019 and that this is the only inference open to the court. Mr Briggs however, says that his plea is only an admission that he was going to sell 2kg of the GHB.
Onus of proof
A plea of guilty is an admission of all of the elements of the offence, however, that does not determine the facts upon which an accused is to be sentenced. In R v Storey[3] the Victorian Court of Appeal said:
The judge may not take facts into account in a way that is adverse to the interest of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused it is enough if those circumstances are proved on the balance of probability.
[3] (1989) 1VR 359 at 369.
That formulation of the test to be applied in relation to disputed facts was cited with approval by the High Court in R v Olvich.[4]
[4] (1999) 199 CLR 270 at [24] – [27].
Factual Matrix
(i) The Drugs:
It is not in dispute, that the accused had in his possession a large commercial quantity of GHB when arrested on 8 May 2019. In a report of 28 July 2020 Mr Clark Nash, Forensic Scientist at the Forensic Science Centre provided detail of the total liquid found in Mr Briggs’ possession. The liquid was in two plastic bottles containing 2.15 litres and 2.14 litres of GHB respectively, and in two small vials containing 2.7mls and 2.9mls respectively.
In his report Mr Clark confirms the total weight of each container of GHB was as follows:
12 Exhibit No
13 Exhibit Description
14 Total Volume
15 Total Weight
16 1902944/2.01
17 Liquid - GHB
18 2.7 millilitres
19 3.19 grams
20 1902944/3.01
21 Liquid - GHB
22 2.15 litres
23 2.6 kilograms
24 1902944/3.02
25 Liquid – GHB
26 2.14 litres
27 2.6 kilograms
28 1902944/4.01
29 Liquid – GHB
30 2.9 millilitres
31 3.4 grams
On this uncontested evidence, I find beyond reasonable doubt that the total amount of GHB found in Mr Briggs’ possession when he was arrested was 4,2956ml which equated to a weight of just over 5.2kgs. Mr Briggs in his evidence stated that he had purchased the GHB earlier in the evening and that he believed he was purchasing 4 litres of GHB being in 2 bottles, each containing 2 litres of the drug. However, the evidence proves beyond reasonable doubt that he was found in possession of 295.6ml more than the expected 4 litres.
The prosecution also relies upon the affidavit evidence of Detective Brevet Sergeant Belinda Anderson dated 3 June 2020 in relation to the use and pricing of GHB in 2019. Detective Anderson is attached to the Drug and Organised Crime Task Force and is an experienced Criminal Investigator within that Task Force. Her evidence is that she is familiar with the drug GHB, and she attests to the fact that the most common method of consumption is by drinking the liquid either straight or mixed with another liquid. A common single dose, is approximately 1- 2mls and street level quantities are usually sold in small plastic vials or tubs.
Detective Anderson provided pricing information in relation to the GHB as between April and June 2019, stating that the street price was between $2.50-$3.00 per millilitre for smaller amounts, and between $1,500.00-$2,000.00 per litre for large amounts. By her affidavit she said that the pricing of illicit substances is monitored by the Illicit Drug Advisory Group comprising of senior investigators and analysts attached to the serious organised crime branch, from where she accessed data in relation to the pricing of controlled drugs, including GHB.
This evidence is confirmed by Detective Brevet Sergeant Timothy Cooper in his Affidavit of 11 March 2020. Detective Cooper was also stationed in the Drug and Organised Crime Task Force, having undertaken several courses in relation to drug offending and the use of illicit drugs. His affidavit sets out in detail his extensive experience with the illicit drug trade in South Australia, Australia and with Australian Federal Authorities. His evidence is that he is conversant with the methods of packaging, pricing, marketing and use of GHB in South Australia. He confirms the evidence of Detective Anderson as to how GHB is usually sold and consumed, that is, in small plastic vials, syringes (no needles), soy-sauce containers or small hard containers. Larger amounts are sold in different sized plastic bottles. He confirmed Detective Anderson’s evidence regarding the pricing of GHB in mid-2019. His evidence was that the usual dose of GHB was 1ml to 5ml, with a typical dose being around 5ml. He says that GHB gives both stimulant and sedative like effects. In small doses this includes euphoria, but in higher doses the effects can include comatose states or death.
Detective Cooper says that when purchasing GHB, a large quantity is cheaper to buy than a smaller amount. He described the basic economic principle applicable to drug traffickers of buying in bulk, and then on-selling individual/small quantities to users at inflated prices.
I find that the evidence tendered by the prosecution proves beyond reasonable doubt that the 4.2956 litres of GHB in Mr Briggs’ possession had a value of between $6,450.00 and $8,600.00 (rounded), if it had been purchased at the bulk rate of $1,500.00 to $2,000.00 per litre.
Mr Briggs case is that he intended to sell (traffic) at least 2 litres of the GHB. Two litres of GHB, if sold in street deals at $2.50-$3.00 per millilitre, had a value to him of $5,000.00-$6,000.00. His case is that he intended to retain approximately 2 litres of the drug for his personal use. That 2 litres also had a value to him of $5,000.00 to $6,000.00, if sold in street deals.
The prosecution submitted that given the amount of the drug found on the accused at the time of his arrest, the value of that drug, and the accused’s financial circumstances at the time, his case that he was going to use half of the drug cannot be accepted.
(ii) Purchase of the Motorcycle and Drugs
Mr Briggs gave evidence that two weeks before he was arrested he had obtained the motorcycle, the subject of the charges against him, from a friend of a friend who worked at the Ghan House Restaurant at Prospect. This person had purchased the motorcycle through Gumtree for the sum of $2,000.00, and gave the motorcycle to Mr Briggs. It was intended that Mr Briggs would pay his acquaintance for the bike, but there was no arrangement as to when or how he would do so. Mr Briggs gave evidence that: ‘…I would pay it back eventually when I start working…’.
Mr Briggs’ evidence was that at the time he was arrested, and prior thereto he was not working, and relied upon Centrelink benefits for his sole income. He said he received $625.00 per fortnight. At the time he was arrested he was living in a home that he had shared with his partner, but that he was moving out of as he could not afford the rent of $420.00 per week from his Centrelink payments. Mr Briggs could not explain why this acquaintance had provided the motorcycle without payment. His evidence was that having received the motorcycle he then removed the number plates as he did not have a motorcycle license. He explained that he was concerned as to the consequences of riding a motorcycle with plates as it could be traced back to him without a licence. I accept the submission of the Prosecutor that this evidence makes no logical sense.
In relation to the purchase of the motorcycle Mr Briggs gave evidence that he had no idea how his acquaintance had paid the $2000.00 for the bike. He had collected the bike from a house at Prospect. The purchase of the bike had occurred approximately two weeks before Mr Briggs was arrested on 8 May 2019. He was told by his acquaintance that he could ride the bike around until he had work and could then pay him back for it. His evidence was that he had not asked for the motorcycle and that when he dropped around to this acquaintance’s house he was offered the bike somewhat out of the blue.
In relation to the drugs found in his possession Mr Briggs gave evidence that he was a very heavy user of GHB. Around the time that he was arrested he said he was taking single doses of between 7ml and 10ml of GHB at a time, 10-15 times per day. He said that he obtained the GHB found in his possession from another, and different friend from behind the Ghan House Restaurant at Prospect. Again, he was provided with credit of exactly $2,000.00 for the drugs given to him. He thought that he was buying 4 litres of GHB. He said that in relation to both debts, he intended to pay them off when he received his Centrelink payments, although he did not explain how he would do so whilst also paying rent and other general living expenses. He gave no evidence as to how long the drug supplier was prepared to wait to be paid, or any detail of their arrangement.
Mr Briggs initially gave evidence that he would have only sold ‘…a little bit…’[5] ‘ …if any…’ [6] of the GHB. He quickly corrected his evidence and agreed that he was planning to sell 2 kg of the GHB.[7] His evidence was that he would sell about 2 litres to cover the cost of the drugs.[8] He believed that the remaining 2 litres was not a significant amount of the drug, and he expected that it would have lasted him a month to a month and a half. This was the first time Mr Briggs had purchased a large, bulk amount of GHB. When asked by the prosecutor why he had bought such a large amount of GHB on this occasion. Mr Briggs’ response was that he was going to the place where he usually bought the drug (in smaller amounts), and as he didn’t believe he would be getting back there for some time he purchased the larger amount. There was no explanation as to why this friend provided over 4 litres of GHB for $2,000.00, a sum well below the usual bulk price of $6,000.00 to $8,000.00 (at the price of $1,500.00 to $2,000.00 per litre). There was no evidence led as to the details of the arrangement to pay back the $2,000.00 in credit, or when re-payment was expected.
[5] T36 L9-10.
[6] T36 L12.
[7] T36 L13-21.
[8] T36 L30-37.1.
(iii) Manufacture of the GHB
The Prosecution submitted that from circumstances surrounding the activities of Mr Briggs’ former partner at Unit 6, 136 Cliff Street, Glengowrie (the Glengowrie property) the strong inference was that GHB was being the manufactured at the property, and that Mr Briggs was involved in the transport of that manufactured GHB. The inference pressed was that Mr Briggs was part of an ongoing commercial enterprise to manufacture and sell GHB and, as a result, his intention was to sell all of the GHB found in his possession.
The Prosecution relied upon evidence in the prosecution of Marina Trimboli, alleged to be Mr Briggs’ partner as at 8 May 2019, and the mother of his two children. Ms Trimboli has pleaded not guilty to charges of Manufacturing and Trafficking a Large Commercial Quantity of a Controlled Drug (GHB). It is alleged that on 9 May 2019 police located equipment at the Glengowrie property consistent with the manufacture of GHB. This included numerous containers, a gas bottle, a burner, chemicals and other items. Swabs taken detected GHB on one item. Ms Trimboli held a short-term rental agreement with the owner of the Glengowrie property. The Prosecutor presented evidence that Ms Trimboli was arrested on 9 May 2019 at the home of Mr Briggs’ grandmother at Elizabeth South. In her car police found over 2kg of GHB.
Evidence was led to link Mr Briggs to the Glengowrie property, beyond his relationship with Ms Trimboli. This included evidence from an eye witness that a man matching Mr Briggs’ description had attended the Glengowrie property on several occasions between 3 May 2019 and 1.30pm on 7 May 2019. He had arrived on a trail-bike that had no number plates affixed to it, and which by her description matched the photographs of the motorcycle Mr Briggs had been riding when arrested in the early hours of 8 May 2019. In providing her description of the motorcycle the witness’s evidence was that she was standing about 2 metres away, with an un-obstructed view during daylight, when she saw the bike. The witness described a primarily cream coloured trail bike, with tan or orange features.
The photographs of the motorcycle upon which Mr Briggs was found shows what I would describe as a trail-bike. It is white to cream, with very distinctive orange paintwork on the underside and within the wheel frames. Mr Briggs denied ever being at the Glengowrie property.
Based upon the photographic evidence presented by the Prosecution, I find that the motorcycle being ridden by Mr Briggs when arrested had distinctive orange markings, and was what I would describe as a trail-bike. It had no number plates on it (admitted by Mr Briggs). I find beyond reasonable doubt that the features of the bike (including the lack of number plates) are so distinctive, that coupled with the description of the rider, that Mr Briggs attended at the Glengowrie property between 3 May 2019 and 7 May 2019.
This evidence alone does not link Mr Briggs to any commercial drug enterprise. The prosecution also led evidence that a plastic 1-litre jug found in the kitchen sink of the Glengowrie property was found to contain a left palm print, identified as belonging to Mr Briggs after forensic testing. He gave evidence that he had never been at the property (which I do not accept), and that he did not know of the jug. On the basis of this evidence alone, I am not satisfied beyond reasonable doubt that Mr Briggs was involved in the manufacture of the GHB.
It is submitted by the prosecution that I should infer that Mr Briggs knew of the manufacture of the GHB as a result of his visits to the Glengowrie property, and was involved in transporting of the GHB. He was arrested by police while doing so. The prosecution relies upon the large quantity of GHB found in Mr Brigg’s possession; the fact that he was transporting it in the early hours of the morning and that he admitted commerciality in his plan to sell at least 2 litres of the drug. They submitted that the only available inference is that Mr Briggs’ offending was part of an ongoing commercial enterprise.
Decision
I found Mr Briggs evidence in relation to how he acquired the GHB and the motor cycle entirely unconvincing. I find it inherently unlikely that he would have two separate friends or acquaintances, who would each provide the exact sum of $2,000.00 of credit to him, in two separate and different transactions. This was particularly so at a time when he was not working and surviving on Centrelink payments, and whilst he was paying expenses including rent for a property that exceeded his weekly Centrelink income.
The arrangement in relation to the purchase of the motorcycle was vague and lacked any detail. I cannot accept on the balance of probabilities that Mr Briggs simply turned up at an acquaintance’s house and was offered a motorcycle on credit for $2000.00, just because this friend of a friend had been able to purchase it on Gumtree. That explanation simply makes no logical sense. The fact that the transaction for the purchase of the motorcycle mirrors the transaction for the purchase of GHB, in nearly all aspects also impacts Mr Briggs’ reliability and creditability.
I also find it inherently unlikely that a drug dealer, being a person behind the Ghan House Restaurant, whom Mr Briggs would not name, would give such a large amount of GHB to one of his customers, an addict in financial trouble, with a significant line of credit. No evidence was provided that Mr Briggs had money to pay for the amount of drugs that were given to him. There was no arrangement as to how, or when, it would be expected that he was to pay for the drugs.
I found Mr Briggs to be an unimpressive witness whose demeanour in giving evidence was evasive and vague. His story on all aspects was implausible. He gave evidence that he was a regular (daily) and heavy user of GHB, and that his usage had increased as his body became used to the drug. For this reason, he needed to keep a large amount of the GHB for his personal use. However, his evidence was that he had never previously purchased such a large amount of the drug. Also, when arrested he was found unresponsive. He described being in a coma and requiring hospitalisation for 1-2 days. This conflicts with his evidence of developing tolerance to GHB. There is no evidence that this batch of GHB was a particularly lethal one, or out of the ordinary.
I also find Mr Briggs’ evidence implausible that a drug dealer would provide such a large amount of drugs (over 4 litres of GHB), at well below usual market rate in his very first bulk purchase from him. He was given credit of $2,000.00, which for 4 litres of the drug is a price of only $500.00 per litre. This was at a time when the price for a bulk purchase of GHB was between $1,500.00 to $2,000.00 per litre. The price offered to Mr Briggs on credit cannot be accepted.
Mr Briggs gave evidence that he was not close with his supplier. This throws further doubt on him being provided the GHB on credit, and at such a low price. I also cannot accept that Mr Briggs was supplied with an extra 295.6ml of GHB, above what he thought he was buying. This makes the per litre price charged for the drugs even less. Mr Briggs had no explanation as to how he was given the extra 295.6ml, being insistent he was only buying 4 litres.
Mr Briggs evidence was that he was going to keep around 2 litres of the GHB for his own use. He was such a heavy user that this would only last him a month, to a month and a half. He said he used 7ml-10ml of GHB on 10-15 occasions every day. I calculate this to be 70ml per day at the bottom end of this range and 150ml per day at the top. This provides a usage range of 490ml to 1050ml per week; and 1,960ml (or 1.960 litre) to 4,200ml (4.2 litres) per 4 weeks; and 2,940ml (2.94 litres) to 6,300ml (6.3 litres) per 6 weeks.
Mr Briggs’ evidence as to his use of GHB cannot be accepted. I find that it was implausible and exaggerated, and given to enable him to explain why he was going to keep 2 litres of the drug, and not sell it. I do not accept it.
Having regard to those matters and to the evidence identified by the prosecution which gives rise to a strong inference to the contrary, I reject Mr Briggs’ evidence as to the reason for his possession of the additional 2 litres (or 3.2kg) of GHB, namely for his own use. While I accept that Mr Briggs was a user of GHB, and may have used a small amount of the drug for his own purposes, he has not satisfied the onus on him to prove the mitigating contention that he intended to keep and use approximately 2 litres or 3kgs of GHB and not sell it.
In relation to the Prosecution case that Mr Briggs was part of a commercial enterprise and was transporting GHB for his partner who was manufacturing it, while I have found that Mr Briggs had attended at the Glengowrie property, I do not find that case proved beyond reasonable doubt. I make no further findings on that issue.
I find that Mr Briggs was in possession of 4.2956 litres of GHB on 8 May 2019 for the purpose of selling the majority of it. I will sentence him on that basis. I cannot and do not make any finding as to whether this was part of a commercial enterprise with others, and will disregard that contention in sentencing Mr Briggs.
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