R v Gasmier
[2019] SADC 103
•14 August 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GASMIER
Criminal Trial by Judge Alone
[2019] SADC 103
Reasons for the Verdict of His Honour Judge Tilmouth
14 August 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
The accused was found in the possession of 10.3 kg of recently harvested cannabis and charged with trafficking in a commercial quantity contrary to s 32(2) of the Controlled Substances Act. This quantity contained 5.22 kg of usable flowering head, which in the process of drying would reduce to no less than 1.32 g of useable dry female cannabis material. A plea of guilty to possession for supply pursuant to s 33I of the Controlled Substances Act was rejected by the prosecution.
Held:
1. The admitted possession of at least 1 kg of cannabis engaged the presumption of possession for the purpose of sale either for an offence contrary to s 32(2) and of basic trafficking pursuant to s 32(3) of the Controlled Substances Act, by virtue of s 32(5) thereof.
2. Offences under s 32(3) and s 33I(2) are available as alternative offences pursuant to s 33R of the Controlled Substances Act.
3. Despite the application of the presumption for purpose, the prosecution nevertheless was required to prove an intention to sell not less than the prescribed trafficable quantities, that is 1 kg in the case of commercial trafficking contrary to s 32(2) of the Controlled Substances Act and 250 g in the case of basic trafficking contrary to s 32(3) thereof.
4. It is not proven in the circumstances that the accused intended to sell as much as 1 kg of the cannabis, but it is that he intended to sell at least 250 g.
Controlled Substances Act 1984 (SA) s 4, s 32(1), s 32(2), s 32(3), s 32(5), s 33I(2), s 33I(2)(b), s 33R, s 43; He Kaw Teh v The Queen (1985) 157 CLR 523; R v Frangos (1979) 21 SASR 331; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA); R v Carr-Briant [1943] 1 KB 607; R v Zampogna (2003) 85 SASR 56; R v Granger (2004) 88 SASR 453; R v Anderson (1992) 60 SASR 90; Do v Western Australia [2014] WASCA 218; R v Gzako [2015] NSWCCA 202; R v Pringle [2017] SASCFC 9; Woolmington v The Director of Public Prosecutions [1935] AC 462; King v The Queen (2003) 215 CLR 150; R v Reeves (1992) 29 NSWLR 109; Pryor v The Queen (1969) 43 ALJR 388; R v WG (2010) 199 A Crim R 218; Murphy v The Queen (1989) 167 CLR 94; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Brown v The King (1913) 17 CLR 570; R v Copeland (1997) 194 LSJS 1; R v Jenner (2000) 110 A Crim R 512; R v Robinson & Tiplady (1985) 123 LSJS 37; R v Woods (2008) 102 SASR 422; R v Daniel (2010) 273 LSJS 271; R v Lavery (2013) 116 SASR 242; R v Tassone [2016] SASCFC 146, referred to.
Krakouer v The Queen (1998) 194 CLR 202; R v Parisi (2014) 119 SASR 277; Shepherd v The Queen (1990) 170 CLR 573; KRM v The Queen (2001) 206 CLR 221, applied.
R v GASMIER
[2019] SADC 103Contents
The Issue
The formal charge
Elements of the offences
Uncontested facts
The intention to sell prescribed quantities
Fundamental principles
The case for the defenceAnalysis
Conclusion and verdictsThe Issue
The accused Shane Gasmier is on trial for trafficking in a commercial quantity of the controlled drug cannabis, to which he pleaded not guilty. A plea of guilty to the lesser alternative offence of possessing cannabis to supply, was rejected by the Director of Public Prosecutions. Mr Gasmier made a valid election for trial by judge alone in September 2018 and the trial proceeded as such.
The central question is whether he is proven to have ‘trafficked’ in cannabis. These reasons proceed to examine that issue and bring the charge to final verdict.
The formal charge
The charge against Mr Gasmier is particularised as that on 7 July 2017 at West Lakes, he trafficked in a commercial quantity of the controlled drug cannabis, contrary to s 32(2) of the Controlled Substances Act 1984 (SA). The alternative charge to which he offered a plea of guilty to of possessing cannabis for supply, is an offence contrary to s 33I(2) of the Controlled Substances Act. This alternative charge was not accepted by the prosecution as satisfying his responsibility for the commercial trafficking offence.
An alternative verdict to the charge of commercial trafficking of possession of a controlled drug intending to supply, is permitted by s 33R of the Controlled Substances Act. This provides:
33R—Alternative verdicts
(1)If, in any proceedings against a person for an offence against this Part, the court is not satisfied that the person committed the offence but is satisfied that the person committed another equivalent or lesser offence against this Part, the court may find the person not guilty of the offence charged but guilty of the other equivalent or lesser offence (and the person is liable to be punished accordingly).
(2)For the purposes of this section, an equivalent or lesser offence is an offence for which the maximum penalty is the same as or less than the maximum penalty for the offence charged.
A further alternative verdict is available for the simple offence of trafficking in cannabis, contrary to s 32(3) of the Controlled Substances Act. It is not contended this was an aggravated offence by any of the circumstances referred to in s 43 of the Controlled Substances Act. Simple trafficking attracts a higher maximum penalty than does possession for supply, and a lesser maximum than applies to commercial trafficking.
Elements of the offences
The elements of the offence of commercial trafficking are that it must be proven beyond reasonable doubt:
·the substance the accused had or dealt with was a controlled drug, (it is not disputed that cannabis is a controlled drug for this purpose);
·that he possessed the cannabis, (this is admitted by the offer to plead to possession for sale): He Kaw Teh v The Queen,[1] R v Frangos;[2]
·that he did so knowing the substance was cannabis, (here again there is no dispute about this issue);
·that the quantity of the cannabis involved was a commercial quantity, (the first Schedule to the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) provides a commercial quantity of cannabis is 1 kg pure or 2.5 kg mixed; and
·that he trafficked in the cannabis (this is the primary issue in contention in this trial).
[1] (1985) 157 CLR 523, 600.
[2] (1979) 21 SASR 331, 337.
An extended definition of ‘traffic’ is provided for in s 4 of the Controlled Substances Act as follows:
traffic in a controlled drug means—
(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 element of trafficking by means of possession intending to sell, is denied by the accused. He claims the cannabis in question here was for his own personal use. His evidence about that is examined in detail later.
Once proven to be in possession of a prescribed quantity, it is presumed in the absence of proof to the contrary, that Mr Gasmier was in possession for the purpose of sale, in the manner proscribed by s 32(5) of the Controlled Substances Act. This provides, so far as applies to the facts of this case:
32—Trafficking
…
(5)If, in any proceedings for an offence against subsection (1), (2), (2a) or (3) it is proved that the defendant had possession of a trafficable quantity of a controlled drug, it is presumed, in the absence of proof to the contrary—
…
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
This ‘deeming’ provision therefore applies to the commercial trafficking charge under s 32(2) of the Controlled Substances Act as it does to the offence of trafficking under s 32(3) thereof. A trafficable quantity for the purposes of s 32(1) thereof is 1 kg and for the purposes of s 32(1) the trafficable quantity is 250 g (pure or mixed), pursuant to Schedule 1 of the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014. Section 23(5) has no application to possession for supply of cannabis under s 33I(2) of the Controlled Substances Act.
Once triggered by proof beyond reasonable doubt of the possession of the requisite trafficable quantity of cannabis, Krakouer v The Queen,[3] the ‘burden’ this section then imposes on an accused is to satisfy the court of the probability that he did not intend to traffic in cannabis: R v Carr-Briant,[4] R v Zampogna,[5] R v Granger.[6] However, the presumption erected by s 32(5) of the Controlled Substances Act is confined to purpose. It does not impinge on the remaining obligation on the prosecution to prove beyond reasonable doubt the intention to sell a commercial quantity on a charge of commercial trafficking, or the intention to sell a trafficable quantity in the case of basic trafficking.[7]
[3] (1998) 194 CLR 202, 210-211.
[4] [1943] 1 KB 607, 612.
[5] (2003) 85 SASR 56, [42]-[44].
[6] (2004) 88 SASR 453, [12]-[13].
[7] This was conceded by the prosecution T168.18-169.10, T172.4-.5, T173.7-.34.
The elements of the alternative offence of possession for the purposes of supply are somewhat different. Section 33I(2)(b) of the Controlled Substances Act provides:
33I—Supply or administration of controlled drug
…
(2) A person who—
(a) supplies or administers cannabis, cannabis resin or cannabis oil to another person; or
(b) has possession of cannabis, cannabis resin or cannabis oil intending to supply or administer the cannabis, cannabis resin or cannabis oil to another person,
is guilty of an offence.
The essential elements of this offence are the possession of cannabis, knowing it to be cannabis with the intention to supply, in the sense of ‘provide, or distribute’ to another person: s 4 Controlled Substances Act. By his plea of guilty Mr Gasmier has admitted knowing possession of cannabis.
The elements of the offence of simple trafficking are the same as they are for commercial trafficking, except that the prosecution need only prove the knowing possession and the intention to sell a trafficable quantity (250 g). Section 4 of the Controlled Substances Act defines ‘to sell’ as meaning ‘sell, barter or exchange, offer to sell, barter or exchange or expose for sale, barter or exchange’. Clearly these several means of sale each import a commercial component to the notion of sale by way of ‘something for something’ (quid pro quo) of some kind, whereas the definition of supply does not.
Uncontested facts
Several police attended the place of residence of Mr Gasmier in Dutton Grove, West Lakes at about 1.45 pm on Friday 7 July 2017, for the purposes of arresting him on an unrelated matter. Quite properly, what that was and what its consequences were, is not before the court. Upon arrival, the police found Mr Gasmier at the rear of the premises where he was arrested as planned. There is no issue as to the lawfulness of that arrest. They had beforehand resolved to search the premises, which they proceeded to do under the cover of a General Search Warrant produced at the time of arrest. Here again there is no contest as to the legality of this search.
Police discovered throughout the house various quantities of cannabis, either hung or in positions for drying, weighing a total of 10.3 kg. As the photographs tendered in the trial show, cannabis leaves were found in the driveway of the premises and in the boot of a Ford sedan parked in the driveway. Mr Gasmier’s track pants and shoes also contained fragments of cannabis.[8] There is no doubt as to the inference that the cannabis was brought to the premises by Mr Gasmier not long beforehand, taken from the boot of the Ford and distributed throughout the house for the purpose of drying.
[8] Exhibit P8 agreed facts 6.1 and 6.2.
During the course of a voluntary record of interview given by Mr Gasmier with police later at the City Watch House, he freely admitted possessing the cannabis, maintaining it was for personal use:[9]
A… Just to notify you on record that I do have a substance abuse problem.
QYes.
AAnd it’s fluctuating it’s not as bad as it has been right. But I just need to make you aware that I do have a substance abuse problem um still I’m struggling in some regards not as bad as I used to be But I’m still having difficulties and that’s just what I need to let you know in regards to this problem.
He resided in these premises with his partner which was owned freehold by his partner’s mother. He had resided there for some time beforehand, possibly for as long as two to two and a half years.[10]
[9] Exhibit P5.
[10] T79.22-.24.
The cannabis seized by police consisted of a mixture of leaf, stem and female flowering head. Expert analysis determined that of the 10.3 kg of gross cannabis, 5.22 kg was useable flowering head.[11] As this was largely in a moist state, approximately 75 per cent of its weight is lost due to water loss in the course of drying.[12] On that assumption, no less than approximately 1.32 g was assessed as the useable dry female cannabis plant material.[13] It was on the basis of this evidence that defence counsel conceded proof of the possession of no less than the prescribed trafficable quantity of 1 kg, having the effect of engaging the presumption of purpose rendered by s 32(5) of the Controlled Substances Act.[14]
[11] Exhibit P8, Agreed fact 8, Exhibit P6, report of Ms McKew.
[12] Exhibit P6.
[13] Exhibit P6.
[14] T77.26-78.7, T193.11-.13.
Detective Sergeant Hunt was called in the prosecution case to provide expert evidence of his knowledge and experience of the illegal trade in cannabis, acquired over the course of 30 years in drug investigations with South Australian Police.[15] Such evidence is of course consistently received in the criminal court on charges of the present kind, as admissible evidence of the indicia and habits of drug dealing, likely pricing, packaging and methods of consumption: Anderson v The Queen,[16] Do v Western Australia,[17] R v Gzako.[18]
[15] T36.4-37.30
[16] (1992) 60 SASR 90, 103-104.
[17] [2014] WASCA 218, [78]-[88].
[18] [2015] NSWCCA 202, [97]-[116].
Amongst other topics, Detective Sergeant Hunt gave the following opinion evidence of relevance to this case:
·cannabis is most commonly packaged for sale in a j-bag or deal bag containing 3-4 g with a street level value from $20-$25, in the ‘next level up’ in an imperial ounce or 28 g in sandwich size press-seal bags for between $200-$250, or in lots at an imperial pound or 454 g, usually in heat sealed bags for $2,000 to just over $3,000;[19]
·the ‘most rudimentary’ manner of drying cannabis is where branches are cut off a plant and strung on a line or placed on a mesh surface to allow air to circulate;[20]
·the value of the 5.2 kg of plant material of which an estimated 1.32 kg of dry female flowering head was (1) if sold in pound lots of between $6,000 - $9,000; (2) if sold in ounce lots amounting to 44 ounces, between $9,000 - $12,000;
·the most common quantity used for smoking in a pipe or bong was 0.2 g; the 1.32 kg adds up to roughly 5,160 cones; and
·if consumed in joints, experience suggests more cannabis than a cone.[21]
He accepted under cross-examination that cannabis ‘could last for a substantial amount of time’ if dried and stored in an airtight container, if kept out of sun light.[22]
[19] T37.4-38.2.
[20] T38.29-40.1.
[21] T37.4-47.7.
[22] T55.25-56.23.
The intention to sell prescribed quantities
The implications of these conclusions as to the quantity of useable cannabis requires some explanation. Acceptance by the prosecution of the obligation to prove beyond reasonable doubt an intention to sell not less than prescribed amounts in order to prove offences under s 32(2) and s 32(3) of the Controlled Substances Act, derives from the Court of Criminal Appeal decision in R v Parisi.[23] It was held in order to prove an offence of large commercial trafficking under s 32(1) of the Controlled Substances Act, that it was necessary for the prosecution to prove an accused intended to sell not less than the prescribed quantity of cannabis. The prescribed quantity for that purpose was 2 kg. The conclusion of the court is best captured in the following paragraphs extracted from the judgment of Peek J:[24]
[23] (2014) 119 SASR 277.
[24] Ibid [36]-[38], Sulan and Bampton JJ agreeing, (emphasis in the original).
Conclusion as to the first prosecution contention
[36] I therefore conclude that on a charge of trafficking in a large commercial quantity contrary to s 32(1) of the Act, it is necessary for the prosecution to prove that the defendant actually intended to sellnot less than 2 kg of the amount of cannabis in his or her possession. However, two important matters should be emphasised.
[37] First, when a defendant is in possession of a large commercial quantity of cannabis, the amount will usually be greater than the exact weight of 2 kg, of course by a varying margin. In such cases, proof of an intention to sell an amount of cannabis that in fact weighs not less than 2 kg (rather than the total amount, however much greater than 2 kg) will suffice. In the present case, it sufficed to prove an intention to sell not less than an amount of cannabis that in fact weighed not less than 2 kg of the total 11.99 kg of the cannabis. In practical terms,such an intention would be established here by a finding that at the time of his possession the appellant intended to sell not less than one sixth of the total “wet” cannabis in his possession immediately prior to police intervention.
[38] Second, provided that the required elements of possession are proven, the prosecution need not prove that the defendant knew what the cannabis in his possession actually weighed or that a weight of 2 kg of cannabis constitutes a “large commercial quantity”.
It was accepted by the Court of Criminal Appeal in R v Tassone,[25] and again in R v Pringle,[26] that Parisi established an element of the offence of a charge of trafficking in a large commercial quantity of cannabis was:
… that the defendant intended to sell not less than a large commercial quantity, that is, 2 kg of the amount of cannabis that had been found in the defendant’s possession.
[25] [2016] SASCFC 146, [38]-[40].
[26] [2017] SASCFC 9, [114].
There is no relevant point of distinction for statutory construction purposes between offences under s 32(1), s 32(2) and s 32(3) of the Controlled Substances Act. This decision therefore applies here by parity of reasoning. This means the prosecution must prove Mr Gasmier intended to sell not less than 1 kg of the cannabis admittedly in his possession on the subject occasion, in order to prove the charge of commercial trafficking, or to sell not less than 250 g in respect of the alternative charge of basic trafficking.
Fundamental principles
The accused comes before the court with the presumption of innocence in his favour. Subject to the application of s 32(5) of the Controlled Substances Act, he is entitled to the benefit of any reasonable doubt arising on the evidence in respect of each charge. It follows from this ‘golden thread’ of the criminal law, that once the evidence raises a reasonable doubt as to his guilt, he is entitled to the benefit of that doubt: Woolmington v The Director of Public Prosecutions,[27] King v The Queen.[28] He is not required to prove his innocence, or to give evidence, or to adduce any other evidence for that matter: R v Reeves,[29] Pryor v The Queen.[30] It is not enough that he might be guilty, or even that it is more likely than not that he was guilty: R v WG.[31] He is fully entitled to expect and receive an impartial and detached consideration of the charges without allowing matters of sympathy, prejudice, sentiment or emotion to play any part in the fact-finding process: Murphy v The Queen.[32]
Apart from admissions made by Mr Gasmier during the course of his evidence, the material otherwise adduced in proof of the charge of commercial trafficking - or for that matter on the alternative charges of simple trafficking and possession for supply - is substantially circumstantial in nature, so a conclusion of guilt must not only be a rational inference, but the only rational inference to be drawn from the united force of all the circumstances: Shepherd v The Queen.[33] Correspondingly, the prosecution must exclude any reasonable hypothesis consistent with innocence: Chamberlain v The Queen (No 2).[34] Furthermore, an intermediate fact which is an indispensable link in the chain of reasoning towards an inference of guilt, must be found proven beyond reasonable doubt before the ultimate inference of guilt can be drawn from it: Shepherd v The Queen.[35]
[27] [1935] AC 462, 481.
[28] (2003) 215 CLR 150, [18].
[29] (1992) 29 NSWLR 109, 117.
[30] (1969) 43 ALJR 388, 388.
[31] (2010) 199 A Crim R 218, [19], and footnote 2 therein.
[32] (1989) 167 CLR 94, 100.
[33] (1990) 170 CLR 573, 578.
[34] (1984) 153 CLR 521, 536.
[35] (1990) 170 CLR 573, 579.
The case for the defence
Mr Gasmier elected to give sworn evidence. His evidence stands to be judged in just the same way as the evidence of any other witness: Brown v The King.[36] It is not to be discounted in any way simply because he is an accused person: R v Copeland,[37] R v Jenner.[38] He is thereby entitled to such credit as is appropriate for having taken that course: R v Robinson & Tiplady.[39]
[36] (1913) 17 CLR 570, 589.
[37] (1997) 194 LSJS 1, [7].
[38] (2000) 110 A Crim R 512, [31].
[39] (1985) 123 LSJS 37, 38.
His version of how he came into the possession of the cannabis and why it was found in the way it was, emerged in somewhat of a rambling and discursive manner during the course of his evidence. Condensed to the narrative first person, it was to the following effect:
I was a user of drugs “mainly amphetamines, marijuana” – I ceased using amphetamines with the birth of my daughter roughly nine days before my arrest, but was “still consuming cannabis heavily … daily”.[40]
[40] T79.16-80.22.
I had a back injury. I suffer from a condition called “spondylolysis that causes severe nerve pain down the back of my leg” and cannabis alleviates my pain. I also need to use “strong opiate medication and narcotic medication”.[41]
[41] T80.20-.31.
The pattern of daily usage was such that I was “into it pretty well first thing in the morning” and “smoke it three or four times daily” exclusively in joints except when using with others when “I’d smoke it through a bong”.[42]
[42] T81.6-.25.
I would consume “(T)o be certain … an ounce a week without any doubt, more if I could”.[43]
[43] T82.9-.15.
My income was by way of a disability support pension through Centrelink of about $920.00 per fortnight and I would source the cannabis “through social circles” from whom I would purchase or otherwise by regularly stealing it from other people who grew cannabis.[44]
[44] T82.20-.83.5.
During these rips or rorts I would usually secure between about five and seven ounces although I did grow one plant of marijuana at the West Lakes house in February 2017.[45]
[45] T83.25-84.12.
As to the cannabis in my possession on 7 July 2017 I stole it from someone who had stolen it “from somewhere else” who called me asking for assistance in obtaining transport and “asked if I could get a car to help him out with a rip that he just done”.[46]
[46] T86.5-.17.
I was told that “plenty” of cannabis was involved and to go to a house at the corner of Tapley’s Hill Road and Grange Road Fulham Gardens next to a Caltex Service Station but I said to him “I can’t help you out”.[47]
[47] T86.20-88.5.
I thought that I was “going to take this myself basically” so I took the keys of the car owned by my partner’s mother without her knowledge, it was sometime after midnight and proceeded to drive to the intersection in order to “benefit myself … by obtaining the cannabis”.[48]
I proceeded to the location, pulled up on Grange Road saw the house that was described to me and couldn’t see anybody in the area so “I helped myself”.[49]
I could detect the smell of cannabis coming from the wheelie bin down the side of the house on Tapleys Hill Road “fully loaded with a green mesh-light roll with a whole heap of cannabis head in it, placed at the back door of the premises”, so I took as much as I could and loaded it into the car and drove it back to the West Lakes address.[50]
I put this in the boot of the car and drove it straight home and unloaded it out of the front of the premises which I quickly bundled up and dropped in the front door.[51]
I then proceeded to return to “get the second lot” in the company of a visitor to the West Lakes house, this time pulling up directly in front of the premises and with the assistance of this person “I grabbed armfuls while he has piled the next lot into the back of the car”, and “turned the bin upside down and put it into a blanket I had taken with me and thrown into the back of the car”.[52]
By the time this second load was returned to West Lakes it was “well into the morning” but still dark when I proceeded to hang it up for drying because “(T)hat’s what you do with cannabis before you smoke it so it is smokable”.[53]
My intention was to “(S)moke it, store it, share it between friends, save me buying it”, for a period as long as possible “about a year, shared between friends maybe somewhere between six, eight, nine months roughly” and which I would store in plastic sealable cereal drums with screw on airtight, light proof lids.[54]
When I had previously bought cannabis I would buy ounces if I had all the money at once and depending on where I got it. Sometimes it would cost 200, 220, 240, 260 “is about top dollar” paid for an ounce of cannabis but generally I’d buy it in quarters that is 7 g, seven-and-a-half grams at a time “so I had money in hand just in case I needed it”.[55]
Both my partner and her mother “hit the roof” when they became aware of the cannabis that morning and the conversation between them about what was to be done with it was to “keep it for smoking between the house, people in the house and friends”.[56]
I did not intend selling any part of the cannabis because it was for “smoking, not for selling”.[57]
[48] T87.8-88.14.
[49] T88.15-.22.
[50] T88.23-.34.
[51] T88.37 – 89.15.
[52] T89.17-90.1.
[53] T90.15-.32.
[54] T90.31-91.26.
[55] T91.31-92.5.
[56] T92.14-.27.
[57] T92.6-.13.
The evidence that Mr Gasmier was a heavy cannabis user and that he often stole it, was admitted in the defence case as relevant to his intention to consume it all, rather than to sell any. As such it is not otherwise used or admissible to suggest he was, or is a person likely to commit the offence(s) charged: KRM v The Queen.[58]
[58] (2001) 206 CLR 221, [31], [107], [134].
The accused’s then partner SD gave evidence that it was just five days after the birth of their daughter, when police came to the West Lakes house and arrested him. She described his use of cannabis as ‘out of control … (I)t was foul’, a situation she began to realise after six months of co-habitation. She added that sometimes he would buy cannabis or ‘more so if he would come across it, that’s how he would obtain it’.[59] She told the court she never saw him sell cannabis from the premises and that he was in the habit of consuming as much as he could ‘I’ve never seen anything like it ever in my life …’.[60] She confirmed he would ordinarily smoke cannabis in ‘big joints’ but ‘now and again he would have a bong’.[61] She like her mother, confirmed Mr Gasmier did not contribute directly to the running of the household in monetary terms or by paying rent.[62]
[59] T132.31-133.10
[60] T133.23-.30.
[61] T133.26-.134.7.
[62] T134.8-.14, T159.4-.27.
The evidence of SD’s mother YD, was much to the same effect, although more generalised. As she resided self-sufficiently upstairs, her understanding of Mr Gasmier’s habits concerning his consumption of cannabis was a secondary one. She did however purport to confirming that ‘Shane had a strong use of using cannabis’, and that a basic rule of the house was that it was to be consumed outside in the shed. She understood he was consuming it daily, as ‘he loved his cannabis … and … smoked it regularly’,[63] although she was not much more precise than that. YD did confirm she was the freehold owner of the property, was the owner of the Ford sedan and that she was entitled to an ‘annuity’ of about $5,200 per month at the time of trial, which stood at a little less than that at the time of these events.[64]
[63] T157.32-158.13.
[64] T158.11-.18.
Analysis
Returning to the elements of the charged offence, it is clear from this evidence that there are complete admissions to all elements of the offence, bar the element of ‘trafficking’. Each of the critical elements in the extended definition of ‘traffic’ quoted earlier, connote an intention to sell the cannabis. Whatever one makes of the reliability of the evidence on the defence side, there is certainly evidence of Mr Gasmier’s substantial and long-standing cannabis addiction, on any view of facts.
The evidence of Mr Gasmier himself was unconvincing, both in the manner in which it was given and in respect of the inherent likelihood of the course of events described. As to the latter, the version of events given by Mr Gasmier necessarily mean a mere acquaintance took the trouble and the risk of entering on premises and harvesting a substantial cannabis crop. Whether from inside or outside is unclear. This was done without arranging a means of escape, or indeed a means of transport. After Mr Gasmier refused his assistance, this person mysteriously left a large quantity of valuable cannabis completely unguarded and relatively exposed, at the side of a home in a wheelie bin near a major traffic intersection, for a not insubstantial period of time during the early hours of the morning. Furthermore, this person whom Mr Gasmier was supposed to have ‘ripped’ off, made no concerted effort to contact him to ascertain what had become of his hard won cannabis. This is an unlikely course of events as a matter of common sense.
Mr Gasmier declined to nominate the name of the person he went with on the second occasion, insisting he was ‘the person standing here on trial for my actions, not someone else’, although no adverse inference is drawn on this account.[65] Mr Richards, counsel for Mr Gasmier, indicated at the beginning of the defence case that this man would be called. In the event he was not called having obtained legal advice against giving evidence. It should be made clear that no adverse inference is drawn by this turn of events either.
[65] T96.3-.9.
Mr Gasmier conceded that on his account of events, the harvesting of the cannabis was not well planned and he acknowledged it involved the inherent risk of someone else finding it.[66] He further conceded it was his biggest score from a ‘rip’, rather whimsically suggesting ‘(G)reed is one of those human traits, isn’t it’.[67] He further conceded it was ‘pretty bad luck’ on the part of the supposed offender and that he would be better organised than that himself.[68] He later surmised under cross-examination that he would have ‘tried to down play it’, ‘I would have certainly been in a better boat than him’, whilst insisting ‘(A)m I here bullshitting you? No I’m not. I’m answering your questions as you throw them to me. I’m giving you …’.[69] He denied ever selling cannabis or intending to do so in this instance.[70]
[66] T99.12-.20.
[67] T103.27-.31.
[68] T108.13-.21.
[69] T123.22-.33.
[70] T124.30-126.6.
On the contingency of a confrontation at the scene during either of the two trips, he professed he would ‘leg it’ and ‘leave the area as quick as you can’, insisting he was a good thief.[71] This inherently risky scenario is compounded when one considers two return trips were involved over a travelling distance of between 5 and 12 minutes each way, according to Mr Gasmier. As to this, he unconvincingly tried to minimise the length of time involved, ‘if I said I was driving the speed limit I would be telling a lie’.[72] One naturally reasons the last thing he would do is to speed, to avoid attracting attention to himself with a boot full of cannabis on board each trip.
[71] T116.1-.7.
[72] T100.1-.8.
Putting aside an objective review of Mr Gasmier’s evidence, he was an unimpressive, combative and argumentative witness under cross-examination, for instance, ‘(T)hat’s a very open-ended question. You need to be a little bit more specific, I think’,[73] ‘(L)et’s just keep to the facts’,[74] ‘(E)xcuse me? … I’ve got away with most of everything I’ve done’,[75] and ‘(Y)ou’re talking about money I’m not. I’m talking about my cannabis problem’.[76]
[73] T110.9-.15.
[74] T111.1-.5.
[75] T115.5-.22.
[76] T118.18-.19.
The following exchange under cross-examination serves to further demonstrate the point:[77]
[77] T120.24-121.28.
Q.You said before you would buy ounces if the cannabis was good but you would buy less if it was crap.
A.I said I would buy an ounce if it was premium. If I could afford I'd buy - I'd still buy it by the quarter if that's all they had. The general rule when you smoke dope is you don't want to drink a B-grade scotch when you're used to drinking Johnnie Walker. Dope cures over time. If it's stored correctly and it's looked after, tended to, dope gets better, it cures with age, like scotch.
Q.Is that more valuable.
A.I wouldn't know about the value. It would be more valuable to me.
Q.Johnnie Walker Black Label is worth more than the red label.
A.It's only what they're selling it for. I'm buying it, not selling it.
Q.Do you have a problem with agreeing with me that it would be worth more.
A.In my instance or in someone else's instance?
Q.I'm talking about -
A.In a drug dealer's instance, I don't think drug dealers hold onto their drugs that long to make it any better. They just process it and move along, don't they, I don't know.
Q.I'm not a drug dealer.
A.Neither am I.
Q.Are you.
A.No, I'm not.
Q.You're confident in telling me how drug dealers go about operating.
A.I deal with them when I buy drugs off them every day, don't I. I'm a drug addict. I don't mean to seem crass or obnoxious or anything but I'm starting to be a little bit tested, you are insinuating I'm selling drugs. I've been a drug addict for a long time. I don't like to buy shit. I like to buy something I can enjoy, something you get your value for money for. It's like buying specials at a shopping centre. You want to buy something decent and get your money's worth, it's about consumer happiness, isn't it?
Q.I don't know.
A.Well, I'm telling you.
In the final analysis, the account of events Mr Gasmier put forward is an inherently improbable one, quite apart from presenting as an unconvincing witness. When pressed with the fact that he told a lie to this person who supposedly rang him looking for transport, he at one point denied this amounted to a lie. He vainly suggested there was a difference between deceiving and lying, endeavouring but failing to explain ‘(A) deceit is to your face, isn't it. Lying to them, I guess lying to your face as well.’[78] Later he embellished, ‘(D)eception is obtaining something, isn't it? What do you obtain by lying?’[79]
[78] T116.12-.34.
[79] T124.2-.16.
His evidence as to the circumstances in which this cannabis was obtained is therefore rejected for all these reasons. Just exactly what the true state of affairs was is otherwise a matter of unproductive and unprincipled conjecture. That does not mean the conclusion inevitably follows that he did acquire the cannabis for the purpose of sale, because it now becomes necessary to consider the evidence the court as the Tribunal of fact is prepared to act on, particularly as to whether the element of intention to sell a commercial quantity is proven beyond reasonable doubt: R v Woods,[80] R v Daniel,[81] R v Lavery.[82]
[80] (2008) 102 SASR 422, [38].
[81] (2010) 273 LSJS 271, [37].
[82] (2013) 116 SASR 242, [50].
The fact remains that the evidence is distinctly to the effect that Mr Gasmier was a heavy user of cannabis. This conclusion returns the question to whether or not it is circumstantially proven he intended to sell at least 1 kg of the cannabis at the time he was in possession of it on 7 July 2017.
Although on a disability pension, the evidence was that Mr Gasmier was not required to pay rent or board, or to contribute to the daily household expenses. It appears tolerably clear that YD was in receipt of a relatively generous income and so was indulgent of her daughter and Mr Gasmier on this account.[83] It follows that no financial pressure to sell cannabis distinctly emerges from his domestic arrangements. There was evidence that Mr Gasmier owned an Audi Saloon which was not ‘running at the time’ because of a ‘bogus starter motor and fuel pump’.[84] As it was not suggested he could not afford to repair it, that inquiry cannot be taken any further.
[83] T111.38-112.7, T147.14-148.35.
[84] T87.15-.24, Exhibit P1, Image 14.
A highly significant consideration is that there was a complete lack of the indicia of trading in cannabis. There were no ‘tick lists’, multiple telephones, telephone call records, deal bags, scales or cash money, to name the most common attributes of trafficking in drugs. There is not one jot of evidence that the cannabis was grown on the premises and in fact the evidence is otherwise. Even so, it is difficult to accept that he would not sell at least some of the cannabis. Although Mr Gasmier spoke of storing it under stable conditions for as long as 12 months, it was likely to degrade progressively over the course of time. More significantly, whilst he retained possession of such a relatively large quantity, he remained vulnerable to detection for a more serious offence than might otherwise be the case if he kept just enough for his short to medium term consumption. In addition there was the obvious difficulty of concealing so much without detection. It is clear that whatever else YD tolerated, it was not extended to allowing cannabis consumption within the house.[85] When she became aware Mr Gasmier had earlier in the year grown a single plant in a pot at the rear of the house, she immediately ordered its removal.[86] It follows that she would hardly have permitted a large storage drum full of cannabis to remain about the house where it was because of its size, vulnerable to detection.
[85] T160.23-161.5.
[86] T84.2-85.2, T133.11-.22, T156.1-.8, Exhibit D9.
From these combined materials it can be inferred that Mr Gasmier was intending to sell at least some cannabis according to the wider sense defined that is sell, barter or exchange, so the question to what extent is proven beyond reasonable doubt?
In the case of R v Parisi referred to earlier, the Court of Criminal Appeal warned against simplistic reasoning from the ‘sheer quantity of the cannabis found’, the high value of the cannabis (as much as $21,780 in that case) and that there was enough to produce 150,000 ‘cones’ for smoking, or between 4,000 – 6,000 joints, to the conclusion that it was intended to sell not less than 2 kg: R v Parisi.[87] This line of reasoning was described as providing a ‘shaky foundation’ for that conclusion,[88] since a cannabis grower was likely to err on the side of producing too much’ lest he would run out of the drug, that there was no evidence of the quality of the cannabis, or to assume it would be consumed alone, as opposed to consuming it with others.[89]
[87] (2014) 119 SASR 277, [51].
[88] Ibid [56].
[89] Ibid [57]-[59].
Here of course there was no evidence of growing or of the quality of the cannabis and yet Mr Gasmier’s own evidence was that he proposed to share it ‘between friends’ and between the people in the house.[90] It was in fact his expectation that ‘shared between friends’ this quantity of cannabis would last for between six and nine months.[91] He volunteered that he proposed to ‘distribute cannabis to a small circle of social friends … on the expectation that it comes back to me at some point, return favour we’ll call it’.[92] This constitutes an admission of at least ‘barter’ and ‘exchange’.
[90] T91.12-.17, T92.24-.27.
[91] T91.12-.17.
[92] T124.23-.28.
There is undeniably a proven background of heavy use, whatever its extent. The prosecution must prove an intention to sell at least 1 kg of the 5.2 kg before drying. The cannabis is shown to be worth roughly between $6,000 to $12,000 and capable of producing 5,100 cones or perhaps 1,000 large joints over a period of perhaps 12 months. As was conceded by the prosecution in Parisi:[93]
The smaller the eventual weight of the cannabis the less likely it maybe that the prosecution can exclude as a reasonable possibility that the cannabis is intended for personal use (or some lesser offence).
[93] (2014) 119 SASR 277, [44].
Whilst on the one hand Mr Gasmier gave the distinct impression of financial self-sufficiency, he went on the other hand to considerable lengths to explain that he spent roughly $200-$260 per week on cannabis and as much as $150 per week for ‘a few points worth’ of amphetamines.[94] In other words his evidence was to the effect that he spent ‘virtually all if I chose to’ from a pension of $460 per week.[95]
[94] T114.1-.33.
[95] T113.4-.38.
There is every reason to doubt the reliability and credibility of Mr Gasmier. The evidence of SD is approached with some caution since she has an interest in the favourable outcome for him. There nevertheless remains a reasonable possibility Mr Gasmier may not have sold as much as 1 kg, or expressed in another way, as much as 20 per cent of this illegally obtained moist cannabis.
By the same token, when it comes to the alternative charge under s 32(2) of the Controlled Substances Act, Mr Gasmier is deemed to have a trafficable quantity in his possession for the purpose of sale, which in this case is by comparison merely 250 g. In that event all the prosecution is left to prove is that he intended to sell at least that much, or again expressed in another way, approximately 5 per cent of 5.2 kg of moist cannabis material, or a dry weight of 66 g, which is just over two imperial ounces. Given the circumstances of the case, there can really be no reasonable doubt about that. One way or another, based on his own evidence, Mr Gasmier proposed at the very least a combination of barter and exchange, bringing him within the statutory definition of ‘sell’. In addition to that, for the reasons articulated above there can be no reasonable doubt of his intention to sell some as well.
Conclusion and verdicts
For all the above reasons the proven circumstances are such that there can be no reasonable doubt Mr Gasmier intended to sell no less than 250 g of the cannabis. It is unproven that he intended to sell as much as 1 kg. He is therefore found not guilty of the offence of trafficking in a commercial quantity of the controlled drug cannabis contrary to s 32(2) of the Controlled Substances Act, but guilty of the alternative of simple trafficking in a prescribed quantity of at least 250 g, contrary to s 32(3) thereof.
Verdicts are entered accordingly.
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