R v Gibbs - [2017] SADC 21

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v GIBBS
[2017] SADC 21
Ruling of His Honour Judge Chivell
16 March 2017
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Defendant pleaded guilty to trafficking in a controlled drug. Dispute as to whether he was a drug dealer with an ongoing drug-selling enterprise or whether the offence was an isolated one committed in part-payment for the purchase of a caravan.
Finding: Prosecution has proved beyond reasonable doubt that the defendant was in the business of a drug dealer at the time of the offence.
Controlled Substances Act 1984 (SA) s 4, s 32(1), s 32(5), referred to.
R v Olbrich (1999) 199 CLR 270; R v Kreutzer (2013) 118 SASR 211, considered.

R v GIBBS
[2017] SADC 21

Mr Gibbs pleaded guilty to trafficking in a controlled drug, contrary to s 32(1) of the Controlled Substances Act 1984. On 22 April 2015 at Berri, he was found to have 393 tablets of 1-(3-trifluromethylphenyl)piperazine (TFMPP), knowing or being reckless as to the fact that the substance was a controlled drug. The total weight was 67.5 grams.
In s 4 of the Act, ‘traffic’ is defined as meaning to:
(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;
There is no doubt that Mr Gibbs was in possession of a ‘trafficable quantity’ of the drug. A trafficable quantity of TFMPP is more than 3 grams.[1]
[1] Controlled Substances Act, s 4 and Regulations, Schedule 1.
Section 32(5) of the Act states:
(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—
(a) in a case where it is alleged that the defendant was taking part in the process of sale of the drug, that the defendant—
(i) was acting for the purpose of sale of the drug; and
(ii) had the relevant belief concerning the sale of the drug necessary to constitute the offence; or
(b) in any other case—that the defendant had the relevant intention concerning the sale of the drug necessary to constitute the offence.
Mr Vadasz, counsel for Mr Gibbs, indicated that there is no dispute that Mr Gibbs:
(i)was acting for the purpose of sale of the drug; and
(ii)had the relevant belief concerning the sale of the drug necessary to constitute the offence.
What is in dispute is the prosecution’s allegation that Mr Gibbs was a drug dealer who was part of an ongoing drug-selling enterprise up to 22 April 2015. Mr Vadasz says that the offence was an isolated one committed for the purpose of buying a caravan.
I accept that the prosecution allegation, if proved, constitutes an aggravating factor to the offending. The onus of proving those facts is therefore on the prosecution beyond reasonable doubt.[2]
[2] See R v Olbrich (1999) 199 CLR 270; R v Kreutzer (2013) 118 SASR 211.
On 10 November 2016, the prosecutor entered nolle prosequi in relation to two other charges, of trafficking in methylamphetamine and trafficking in cannabis. The prosecution also entered nolle prosequi in relation to Mr Gibbs’ alleged co-offenders, Brenton John Champion and Angela Gayle Jones.
Mr Gibbs denies that he was a drug dealer. He gave evidence on oath. He said that he was a drug user. He was in the process of purchasing a caravan from a man in Berri when he was apprehended by the police. The vendor of the caravan had requested that part-payment of the purchase price be made in drugs. He therefore obtained the TFMPP from a dealer in order to supply it to the vendor in part-payment for the caravan.
Mr Gibbs said that he spent about seven months in gaol until July 2014. While he was in custody, the bank sold a house property that he owned. He had about $20,000 left over from that. After release from custody, he reverted to his addiction to painkillers and methylamphetamine. He was paying for drugs with that money and with Centrelink money.
On 22 April 2015, Mr Gibbs had driven to Berri with Mr Champion and Ms Jones. He had about $1,000 in cash with him; $300 was in his hand and another $700 in his wallet.
Exhibit P3 is a notebook which the prosecution describes as a tick or debt list. Mr Gibbs admitted that it was in his bag when found by the police. He denied that it was his notebook. He said it belonged to Mr Champion. He said Mr Champion put the notebook in his bag, as it was convenient to do so. He denied that it was his handwriting in the notebook. Everything else in the bag was his.
I reject Mr Gibbs’ evidence about this. It is very convenient to blame Mr Champion after the prosecution has entered nolle prosequi against him. Further, in the notebook there are references to ‘Champ’ (which is a likely reference to Mr Champion) and ‘Angela’ (which is a likely reference to Ms Jones). Mr Gibbs denied this. He said he called Mr Champion ‘Brenton’ and Ms Jones ‘Scratchy’. I do not believe his denials. I find that the presence of those names in the notebook is strong circumstantial evidence that Mr Champion and Ms Jones were customers of Mr Gibbs, and not the other way around.
Unlike many tick lists, Exhibit P3 is prepared in an orderly and neat way. Mr Gibbs told me that when he worked at Dunlop in Whyalla, he went to night school and studied accountancy at TAFE. Then he worked for about 10 years in ‘admin and accounting roles’, after which he moved to a ‘project manager role’ when he was employed at Transpacific.
Many of the entries in the notebook commence with the word ‘Open’, which is clearly a reference to the opening balance. At the end of the list, the word ‘Close’ appears, clearly representing the closing balance. There is a reference to part-payments being made. There is a running balance kept for each debtor. There is a reference to ‘bad debts’. This is circumstantial evidence that the list was prepared by somebody with, if not accounting, then at least bookkeeping experience. I do not believe Mr Gibbs’ denials about this issue either. His replies to questions on this topic were completely unconvincing.
Mr Gibbs said that the price of the caravan was $3,500. He had paid $500 to the vendor already. He intended to pay the balance of $3,000 on the day he was arrested (they were apprehended at about 2 a.m.). He had $1,000 in cash and Angela Jones also was carrying $1,000. The evidence of the police officers was that Ms Jones had this $1,000 in her underwear. It is unlikely that a person would carry money in his or her underwear with the intention of buying a caravan with it. It is not apparent why Ms Jones was carrying money for Mr Gibbs, nor whether she was aware that he was also in possession of drugs. She did not give evidence.
As to the remaining $1,000, Mr Gibbs said that the vendor asked him to supply $1,100 worth of ecstasy pills. It has been assumed that TFMPP and ecstasy are the same drug for these purposes.
The street value of the drug was, on the prosecution evidence, about $4,000, not $1,100 as Mr Gibbs alleged.[3] This was not disputed by Mr Gibbs:[4]
Q.   Do you agree that street value at that time for those amount of drugs was approximately $4,000.
A.   I don't know the value of it, no.
[3]    See the statement of Detective Brevet Sergeant Anderson dated 27.9.16 at page 8: 100 to 1,000 tablets of MDMA (and TFMPP) cost $10 to $12.50 each.
[4]    T 15.
I reject Mr Gibbs’ evidence that he would have given TFMPP of that value to the alleged vendor of the caravan.
Mr Gibbs denied that he was going to sell any of the ‘ecstasy’ himself.[5] He denied that any of the money in his possession or in Ms Jones’ possession was the result of his drug-selling activities. He said it was the last of the money he had from the sale of his house and Centrelink payments. There is no other evidence, such as bank records, to either confirm or refute these assertions.
[5] T 13.
Mr Gibbs has previous convictions for drug trafficking. On 19 February 2010, he was convicted of trafficking in a commercial quantity of a controlled drug and received a suspended sentence of six months imprisonment. The drug involved was ecstasy. That offence was committed on 14 March 2008.
On 6 June 2016, Mr Gibbs was sentenced to 28 months and 28 days imprisonment, cumulative upon other sentences, for trafficking in methylamphetamine. That offence was committed on 30 November 2015, which is after these offences were committed.
These convictions demonstrate that Mr Gibbs had a propensity to sell illegal drugs at around the relevant time, that is, both before and after 22 April 2015.
Conclusion
I am satisfied beyond reasonable doubt that Mr Gibbs was in the business of a drug dealer when he was apprehended by the police in Berri on 22 April 2015. I am satisfied that this was not an isolated offence, but was part of an ongoing course of conduct as a drug dealer. As such, he is not entitled to the leniency which might be afforded to isolated offending. Any such leniency would be very limited, anyway, having regard to Mr Gibbs’ record of drug offending.