R v Geale No. DCCRM-03-51
[2003] SADC 126
•21 August 2003
R v Sandra Diane GEALE
[2003] SADC 126CRIMINAL - RULING
JUDGE DAVID SMITHIntroduction
The defendant is charged with:
·Possessing methylamphetamine for sale or supply
(s32(1)(e) of the Controlled Substances Act, 1984); and
·Possessing cannabis
(s31(1)(a) of the Controlled Substances Act, 1984).
It is now clear that charging a defendant with possessing methylamphetamine for sale or supply, is not duplicitous. Section 32(1)(e) creates one offence. The precise purpose of the possession is not an essential ingredient to the offence (see R v Hoang [2002] SASC 262).
In this Court, on the 10th February 2003, the defendant pleaded guilty to possessing methylamphetamine for supply only. She also pleaded guilty to possessing cannabis. However, the Crown would not accept the plea to the first count in satisfaction of the first count.
Having regard to s44 of the Controlled Substances Act, 1984, the fact that a defendant is in possession of a substance such as methylamphetamine for the purpose of sale is a matter of aggravation. That section provides, inter alia:
“44.In determining the penalty to be imposed upon a person convicted of an indictable or minor indictable offence against this Act, the court must take into consideration –
(d) in the case of an offence involving the manufacture, production, sale or supply of a drug of dependence or prohibited substance, or the possession of a drug of dependence or prohibited substance with intent to sell or supply it to another –
(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 an application for forfeiture of property has been made under the Criminal Assets Confiscation Act 1996 in respect of that financial gain);”
Accordingly, a disputed fact hearing took place before me on the 4th August 2003. At issue was whether the offence constituted by Count 1 was aggravated by the defendant possessing at least some of the amphetamine for the purposes of sale. The defendant herself gave evidence and called a witness named Christopher Buck. The Crown did not adduce evidence but rather relied upon the declarations there being no contest about the facts alleged therein. The Crown carries the burden of establishing any circumstances of aggravation beyond reasonable doubt (see R v Anderson (1992-93) 177 CLR 520; R v Olbrich (1999-2000) 199 CLR 270; and R v Lobban (2001) 80 SASR 550).
The declarations and oral evidence
I set out hereunder the uncontested facts which emerge from the declarations.
The defendant was arrested on the 19th September 2002. A search of her premises at Waikerie resulted in the discovery in her freezer of a total of 0.55 grams of methylamphetamine contained in 21 small plastic press seal bags. The weight and methylamphetamine content of the powders are as set out in the following table.
Laboratory
identification of powderPowder weight
(grams)Methylamphetamine
weight (grams)3A 0.07 0.01 3B 0.08 0.01 3C 0.09 0.01 3D 1.64 0.19 4A 0.40 0.06 4B 0.42 0.05 4C 0.47 0.06 5A 0.10 0.01 5B 0.09 0.01 5C 0.09 0.01 5D 0.08 0.01 5E 0.09 0.01 5F 0.13 0.02 5G 0.11 0.01 5H 0.11 0.01 5I 0.12 0.01 5J 0.09 0.01 5K 0.13 0.02 5L 0.11 0.01 5M 0.11 0.01 5N 0.11 0.01 TOTAL 4.64 0.55
Also discovered and seized was a total of 33.5 grams of cannabis. Police also found a set of digital scales numerous empty press seal bags and a list of names with monetary amounts entered against the names. Whilst the police were at the premises, the defendant received a telephone call which was answered by her answering machine. The caller asked if the defendant was “holding”. A transcript of the answering machine tape revealed an earlier call in which the caller said that “Gary dropped 50 bucks in and he needs two bags”. Other callers addressed the defendant as “Speedy”, and inquired if she has “got anything” and referred to a “clearance sale”.
As indicated, the defendant gave evidence. She is a 35 year old widow with an infant son. She said that in about 1999 she received a payout of $50,000 from the WorkCover Corporation for a low back injury incurred in the course of 13 years work with Sutton Ford at Waikerie. Following the death of her partner in October 2000 she also received an insurance payout of $32,000. Shortly after her partner’s death she moved from her previous home in Waikerie to 25 McCutcheon Street. That was the house raided by police on the 19th September 2002.
She said she was a regular cannabis user because of her back pain. Further, she admitted using amphetamine “just on occasions after Mark died just so I could cope with what was going on ...”.
The defendant said she purchased the amphetamine from Adelaide. She said he would come to Adelaide and buy 1 gm at a cost of $200 and then using the scales divide it into 10 “points” (ie 0.1 of gram). She said the amphetamine seized by police was two such purchases of four made in 2002. The amphetamine in the 21 small press seal bags seized by police was the result of her splitting the two purchases into “points”.
She said that the small bags were not destined for sale but rather she used the bags as a means of paying for work done around her home which she was not able to do herself. She nominated the workers as Christopher Buck, Same Tremble and her brother Gavin Neale. This arrangement was born when Chris Buck helped her move house following her partner’s death in October 2000. Neither the defendant nor her witness Christopher Buck were overly convincing about this arrangement. I accept there was a semblance of truth to it but that is all.
I turn to the list of names and monetary amounts. The defendant’s response to the Crowns suggestion that this was plainly a drug customer list, was that this was a list of loans made by her at various times to the named persons. Her evidence about the list lacked convincing detail and was not supported. It was solely within her power to adduce evidence establishing at least the reasonable possibility that it was an informal money lenders list. In all her evidence about this was unconvincing and implausible.
I turn finally to the telephone calls.
Whilst police were searching the defendant’s house, the defendant received a telephone call from an individual who asked whether the defendant was ‘holding’. The call was answered by the defendant’s answering machine. Police seized the defendant’s answering machine tape and the recorded messages on the tape were transcribed (Exhibit VG 5) and each call given a number. The Crown contends that the messages contained within the tape are indicative of a commercial operation. In support of its contention, the Crown refers to two calls which refer to the defendant as ‘speedy’ (c2 and c78); one call in which the caller asks if the defendant is ‘holding’ (c45); one call in which the caller indicates that ‘Gary dropped $50 in and he needs two bags’ (c39); one call which makes reference to a ‘clearance sale’ (c23) and one call in which the caller asks if the defendant has ‘got anything’ (c44).
In her evidence, the defendant provided various explanations as to the identity of the callers and what the calls referred to. In relation to c39, the defendant identified the caller as being Sonja Russell, a friend of hers at the time the call was made, and identified the call as being a request for marijuana. The defendant described an agreement which she says she had with Ms Russell for the provision of marijuana by each party on alternate months. In relation to c45, the defendant identified the caller as Sam Tremble and explained that Sam called to see if the defendant was ‘holding’ any amphetamines at the time because the Drug Squad was at her house. The inference here was that Mr Tremble was offering to assist with the removal of any evidence of amphetamine that the defendant may have had in her possession at the time of the police raid. The defendant explained the references to ‘Speedy’ as being her nickname, and stated that her nickname was ‘Speedy nifty’. She denied that this nickname was a reference to, or related to amphetamine some times known as “speed”. The defendant could not identify the caller in c23 and could not explain what the reference to ‘clearance sale’ signified. The defendant identified the caller in c44 as a girlfriend of hers (at the time the call was made) but she could not explain what the reference ‘have you got anything’ meant.
The Arguments
The Crown contends that the circumstantial evidence constituted by the discoveries by police gives rise to an overwhelming inference that the defendant possessed at least some of the methylamphetamine for the purposes of selling it.
The defendant contends that she merely possessed the amphetamine for her own use and for the purpose of supplying it to people such as Christopher Buck. She denies that she possessed any of the amphetamine for the purpose of selling it and contends that the inference contended for by the Crown does not reasonably arise from the circumstances.
If I am satisfied that the defendant’s explanations are a reasonable possibility then it follows that the Crown will not have proved this aggravating circumstance beyond reasonable doubt.
Conclusion - Findings
On the whole, I find the defendant’s evidence about the nature of the packaging of the drugs found, the list of names and the telephone calls to be wholly implausible. I reject the defendant’s evidence that there was no sale of amphetamine in train when she was engaging in the practice of purchasing bulk quantities of amphetamine and dividing it into smaller, clearly saleable units. Whilst I accept that the defendant may indeed have used amphetamine as a form of payment for jobs done around her house and, further, that she was a user of amphetamine herself, I am not satisfied, that it was a reasonable possibility, that such use was the only use to which the amphetamine was put. This is particularly so in light of the defendant’s vague evidence about the list of names and the telephone calls. I reject the defendant’s contention that the list of names represented a running list of outstanding loaned sums and in particular that she engaged in the practice of lending money hither and thither to persons some of whom were no more than mere acquaintances. The defendant’s explanations about the telephone calls are unconvincing in the extreme.
So in my view the defendant has not raised as a reasonable possibility that she possessed the amphetamine solely for her own use and for payment in kind to workers. Rather, the circumstance raise an overwhelming inference that the defendant possessed at least some of the methylamphetamine for the purposes of selling it.
Accordingly, considering the evidence as a whole, I am satisfied beyond reasonable doubt that the defendant did engage in a small and rather crude commercial operation, but a commercial operation nonetheless. Thus, I find that the defendant did possess methylamphetamine for both sale and supply.
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