R v Dyer No. DCCRM-00-228

R v Alan Stanley Dyer
[2000] SADC D90

Judge Sulan
Criminal

On the 22nd May 2000 Alan Stanley Dyer (“Dyer”) pleaded guilty to taking part in the sale of cannabis contrary to s32(1)(d) of the Controlled Substances Act 1984. Particulars of the offence are that between the 11th May 1999 and the 2nd June 1999 at Mitchell Park and other places, he knowingly took part in the sale of cannabis, a prohibited substance, to another person. The amount of cannabis was in excess of 2kg.
On the same day Richard Arthur Slee (“Slee”) pleaded guilty to possession of cannabis for the purpose of sale contrary to s32(1)(e) of the Controlled Substances Act 1984. It is alleged that on the 1st June 1999 at West Beach he knowingly had cannabis a prohibited substance in his possession for the purpose of selling it to another person and that the amount of cannabis was in excess of 2kg.
On the 22nd May 2000 I was informed by Ms Boord for the Director of Public Prosecutions that the Crown was discussing with Mr Ey, counsel and solicitor for Dyer, the basis of Dyer’s plea but no basis for the plea had been agreed. I was informed that the Crown was carrying out further investigations. As to Slee I was advised that the Crown agreed to proceed with respect to Slee who had travelled from Sydney to attend court. Mr Ey requested that I set down Dyer’s matter for a disputed facts hearing. Dyer was remanded for that purpose to the 22nd June 2000. Mr Ey and Dyer were excused from further attendance.
Mr Wardle made submissions on behalf of Slee. I will return to those submissions in due course, as they are relevant to the position of Dyer.
The undisputed facts in the case are as follows. On the 1st June 1999 police were conducting a surveillance operation at the Adelaide Airport involving Slee. At about 5.20pm Slee arrived on a flight from Sydney. Police examined Slee’s suitcase in the baggage handling section. It appeared to be empty other than for a small loose package. It was locked with a small padlock. The case was then released for collection.
Police observed Slee remove the case from the carousel. He was followed out of the terminal and seen to use a mobile phone. At about 5.43pm a Holden Camira driven by Dyer arrived and Slee got in.
The vehicle was followed to 6 Walters Street, Mitchell Park, the home of Dyer, where both Dyer and Slee were seen to go inside at about 5.58pm. At about 6.28pm Slee and Dyer returned to the Camira motor vehicle and Dyer drove Slee back to the airport where he was observed entering the terminal carrying the blue suitcase. He approached the Qantas counter and spoke to a staff member.
Police then apprehended him. The case was opened and inside the case were two vacuum sealed bags each containing three separate bags which each contained approximately 440gms (approximately 1lb) of good quality cannabis. Slee was arrested. Slee told police he resided in Gorokan, New South Wales. He refused to answer further questions.
Detective Roberts stopped Dyer in the white Camira near the airport shortly after Slee had been dropped off. He told Detective Roberts that he had just dropped off a mate. Dyer was arrested and taken to 16 Walter Avenue, Mitchell Park.
The premises consisted of a house and two rental premises situated at the rear. In one of the rental premises police located plastic vacuum sealed material similar to the packaging in which the cannabis was located. They also discovered ten hydroponically growing small cannabis plants which Dyer stated belonged to him. A small quantity of cannabis was located in Dyer’s car which he said belonged to him and was for his personal use. Dyer declined to answer questions.
Further inquiries revealed, and it is not disputed, that on the 12th May 1999 an amount of $6,000 had been deposited into a Westpac account in the name of Alan Stanley Dyer. The deposit was made by Slee at the Gorokan branch of the bank. On the 14th May 1999 Dyer made a balance inquiry. At the time, the account was in credit in the amount of $5,983.73. At the time of the deposit it had been in debit in the amount of $16.27. No significant withdrawals were made until the 31st May 1999 when two amounts of $200 and $800 respectively were withdrawn.
It was upon these undisputed facts that the prosecution submitted that I should infer that Dyer was not only involved in delivering the cannabis to Slee but that he was involved as a trader for a commercial purpose. The value of the cannabis located in Slee’s bag is approximately $15,000.
I now return to the submissions made on behalf of Slee, which were accepted by the prosecution as the basis upon which I should sentence Slee. Mr Wardle informed me that Slee was very friendly with a man, Bryan Williams, who he had known for about ten years. Williams asked Slee to do him some favours. The first was to pay $6,000 into Dyer’s bank account, details of which were given to Slee by Williams. Williams told Slee that the payment related to a car. Slee realised later that this was false. Mr Wardle tendered, by consent, a Statutory Declaration sworn by Williams in which Williams made the following statement:
“I Bryan Williams of 99 Burke Road, Umina in the State of New South Wales do hereby solemnly declare and affirm;
On May 12, 1999 I gave Richard Slee a cash amount of $6,000 with instructions to deposit it at Lake Haven Westpac. This money owed by me to Alan Dyer is unrelated to Mr Slee’s current court case.”
Williams also asked Slee to go to Adelaide to pick up some cannabis. He was to meet “Alan” who would take him to where the cannabis was and return him to the airport. Slee was to take an empty suitcase and return with the cannabis in it. Mr Wardle tendered a letter from Slee’s solicitor in New South Wales in which the solicitor stated that he had been instructed by Slee that Williams had provided the sum of $2,000 to Slee’s sister, Michelle Perry, so that she could lodge that sum as bail for the release of Slee. Slee was to receive $1,000 for his efforts.
It was put to me and not challenged by the prosecution, that this was a one off occurrence, done as a favour to a friend. It was suggested that Williams was the organiser behind the transaction and that Slee, out of a foolish sense of loyalty, co-operated and assisted in the transaction. The Crown did not challenge the submission nor did Ms Boord submit that I should not rely upon the statutory declaration which provided independent support of Slee’s version. Ms Boord informed me that the value of the cannabis was $4,000 to $6,000. That calculation is not correct. I then asked Ms Boord whether I should consider the role of Dyer when I was considering the position of Slee. She affirmed that although the two were charged on the same information there was not any connection between them, other than that Dyer was the contact, and there was no suggestion that Slee knew him. She agreed there was no reason for me not to sentence Slee before Dyer’s matter was heard.
I am informed by Mr Ey that at the time that that concession was made by the prosecution the Director of Public Prosecutions was aware, and had been aware since the 6th March 2000 of the basis of Dyer’s plea. If that be the case, in my view, it would have been desirable to deal with both Slee and Dyer together. I could then have ascertained if there was any conflict between them and attempted to resolve it accordingly. There are some matters which could have been raised with Slee’s counsel, which may have assisted me in determining the extent of Dyer’s involvement in the transaction.
That brings me to the case for Dyer. Dyer contested the prosecution position that he was a principal, knowingly involved in this matter for his own commercial purposes. Dyer gave evidence. He said that in May 1999 he was residing at 16 Walter Avenue, Mitchell Park. He said that at the rear of the premises was a two bedroom unit and a single bedroom unit. The two bedroom unit was rented out, but the single bedroom unit was used on a casual basis and various people stayed there including Joseph Hamra, the son of his defacto partner with whom Dyer had been living for some years. He had acted as a stepfather to Hamra.
Dyer said that Hamra was heavily involved in drugs and in particular amphetamines and he and his defacto partner, Christine Jones, had been trying to assist Hamra to overcome his habit. He said that Hamra was in serious difficulty with the police and over a period of time he had lent Hamra approximately $6,000 to assist Hamra to pay legal fees and for other expenses. He told the Court that Hamra had been convicted of drug offences late last year and was serving a lengthy jail sentence of approximately 4½ years.
He said that on the 1st June 1999, the date of his arrest, he was at work when he received a phone call from Hamra. Hamra asked him if he could drive via the airport on his way home, to pick up Hamra’s friend, Richard Slee. Dyer said that he had met Slee some weeks earlier at Hamra’s flat in Baker Street, Marleston when he was visiting Hamra. He therefore knew Slee. He said that he agreed to pick up Slee because at that time the family only had one operational vehicle. He said that Hamra asked him to take Slee back to the Mitchell Park premises, and that there was a bag in the rear flat which Dyer should give to Slee. He made no enquiry from Hamra about the contents of the bag.
Dyer said he picked Slee up at the airport and drove him to the house at Mitchell Park. Dyer then went to the rear flat and saw the parcel on the bed. He recognised when he looked in the bag, that the parcel contained cannabis. Nevertheless he gave the bag to Slee and drove him back to the airport. He said that he received no money for having picked up Slee and delivering him back to the airport. He said the first that he knew that there was anything illegal going on was when he recognised the cannabis in the bag and all he wanted to do was to give to it to Slee and get Slee back to the airport. He said he was doing Hamra a favour.
He acknowledged that on the 12th May 1999 an amount of $6,000 had been deposited into his Westpac bank account. He said that some time prior to that date Hamra told him that he was going to receive some money and intended to repay the loan. He said he learnt about the deposit sometime shortly after it had been made, and he accepted that he must have made a balance enquiry on the 14th May, although he had no specific recollection of it. He said he made no inquiries from Hamra about the source of the money but because he was short of money at the time, he gladly accepted the payment. At the time that the money was paid into his account he said he had no idea that it was in any way involved in a cannabis deal, and at the time of the handing over of the cannabis on the 1st June he did not relate the cannabis transaction back to the payment of $6,000 into his bank account. He said he was unaware as to the source of the deposit. He said that he had given the number of his bank account to Hamra in order for Hamra to be able to make the deposit.
The prosecution did not call any evidence, either as part of its case or in rebuttal of Dyer’s evidence. Although the prosecution had been made aware at the time that Mr Wardle made submissions on behalf of Slee, on the 22nd May 2000 that Williams had sworn a statutory declaration that the money was due to Dyer, there was no attempt to call Williams or to explain why Williams was not called. The evidence of Dyer does not accord with the case put by Slee, and is not consistent with the statutory declaration of Williams. Williams made no mention of Hamra in the statutory declaration. I do not understand why the prosecution consented to the admission of Williams’ statutory declaration when the prosecution was aware or should have been aware, that Dyer’s explanation was not consistent with Williams’ statutory declaration. Furthermore the position put by Dyer conflicted with the position put on behalf of Slee. There had been no mention by Slee of Hamra. Mr Wardle in his submission, suggested that Slee had met Dyer for the first time when he came to South Australia on the date of the offence. Dyer said that he had met Slee on an earlier occasion at Hamra’s flat. If I had known the detail of Dyer’s case, I would have wished to ascertain from Slee to whom he spoke when he left the terminal and whether he instigated the call or whether the person spoke to him. If it transpired that he spoke to Dyer, I would have asked for details of how it came about that Slee knew Dyer’s phone number or alternatively, that Dyer knew Slee’s phone number. The prosecution chose not to call Slee nor to explain why Slee had not been called nor to explain why the prosecution had been content to allow the submission on behalf of Slee to be made and to go unchallenged, when they were aware or should have been aware that submissions on behalf of Dyer would conflict with the position as put on behalf of Slee. Furthermore even though I accept that the prosecution may not have wished to rely upon Hamra I have no evidence other than that of Dyer as to the circumstances.
I was not impressed by Dyer’s evidence. I consider his explanation about the payment of the $6,000 into his bank account and the manner in which it was received by him in the belief that it came from Hamra lacked credibility. I do not accept his explanation of how it came about that he was asked to pick up Slee from the airport. I consider his evidence about his reason for driving Slee back to the airport after he had discovered that the package he was to deliver was cannabis was ingenuous.
When police attended at Dyer’s home they found ten young cannabis plants growing hydroponically in a room at the back of the property. Dyer told the police that the cannabis belonged to him but he said in evidence that the cannabis belonged to Hamra. He said he was protecting Hamra at the time because Hamra was in a lot of trouble with the police. I found Dyer’s evidence on this topic unsatisfactory.
The onus and standard of proof in sentencing was the subject of a recent decision of the High Court in R v Olbricht [1999] 166 ALR 330. The majority of Gleeson CJ, Gaudron, Hayne and Callinan JJ rejected any notion that a sentencing judge must accept the accuracy of an offender’s contention unless the prosecution proves the contrary beyond reasonable doubt. They confirmed that if the prosecution seeks to have a matter of aggravation taken into account and the defence disputes that matter, it is for the prosecution to adduce evidence and satisfy the sentencing judge beyond reasonable doubt. It is only necessary for evidence to be adduced if the asserted fact is disputed or the judge is not prepared to accept the assertion. On the other hand, if there are matters of mitigation which the accused seeks to establish and if they be the subject of dispute or if the judge does not accept the matter asserted in favour of the accused, then it is for the accused to satisfy the judge on the balance of probabilities in respect of such matter.
The payment of $6,000 into Dyer’s bank account some two weeks before the transaction and Dyer’s knowledge that such payment was related to the subsequent transaction is in my view a matter of aggravation upon which the prosecution must satisfy me beyond reasonable doubt.
Dyer has given an explanation. He has named others who could have given relevant evidence about some matters. Dyer’s evidence has gone unchallenged in respect of some significant matters, including his having met Slee on a previous occasion, his relationship with Hamra, the circumstances of the receipt of the $6,000 and whether Williams owed it to Dyer or to Hamra. If the plea of Slee had been heard after I had heard Dyer’s explanation, there are a number of questions I could have asked of Slee’s counsel which may have assisted me in arriving at a conclusion about both Slee’s and Dyer’s respective involvement and any connection between them. I may have not been prepared to rely upon Williams’ statutory declaration if I had known what Dyer said about the transaction.
In the circumstances, the state of the evidence before me is unsatisfactory. Although I am unimpressed by Dyer’s evidence and have a suspicion that his knowledge about the payment was much greater than he has admitted, I am unable to conclude beyond reasonable doubt that when he received the $6,000 he knew it was in respect of the cannabis transaction. I conclude that after the transaction, Dyer suspected that the payment may have been related, nevertheless, he kept the money and made no further enquiry from Hamra about the source of that money.
As to Dyer’s assertion that his involvement in the transaction was limited to him driving Slee to the airport after having discovered the cannabis in the bag shortly before, I reject that explanation. I regard Dyer’s version of how he came to know of the cannabis and of how Slee was involved as matters in his favour. He must satisfy me on the balance of probabilities about them.
I do not accept his evidence that he was innocently duped into picking up Slee from the airport and that he only discovered Slee’s purpose in travelling to Adelaide when he first discovered the bag of cannabis in Hamra’s room. In my view, Dyer must have known the purpose of Slee’s visit and been aware that there was a large quantity of cannabis to be sent with Slee interstate at the time he picked up Slee from the airport.
I am unable to conclude the extent of Dyer’s involvement but I do not accept his contention that he only realised the purpose of Slee’s visit after the two of them arrived at Mitchell Park and he looked in the bag. I accept that Hamra may have been involved in some way, but in my view, Dyer’s participation was greater than he has been prepared to admit.
Furthermore, Dyer became involved in a commercial transaction and by his plea has accepted that he was aware at the time the cannabis was handed to Slee, that he was party to a transaction involving a commercial purpose and for profit. He himself subsequently realised that the payment of $6,000 related to that transaction. He kept the money.
It follows that I will sentence Dyer on the basis that he was knowingly involved in a commercial transaction, that he transported Slee to and from the airport at all times knowing the purpose of Slee’s visit and that he received $6,000 for his role in the transaction, albeit that he was unaware when the monies were paid into his account, that they related to an illegal activity. I accept that Hamra may have been involved but the extent of his participation and that of Dyer is unclear.

[2000] SADC 90

28 July 2000