R v Hewat [No 2]
[2015] WASC 119
•7 APRIL 2015
R -v- HEWAT [No 2] [2015] WASC 119
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 119 | |
| Case No: | INS:104/2014 | 19 & 20 MARCH 2015 | |
| Coram: | HALL J | 7/04/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Issue determined | ||
| B | |||
| PDF Version |
| Parties: | THE QUEEN CAMERON BRADLEY HEWAT |
Catchwords: | Criminal law Trial of issues Turns on own facts |
Legislation: | Nil |
Case References: | Law v The State of Western Australia [2009] WASCA 193 Medan v The Queen [2011] WASCA 142 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Storey [1998] 1 VR 359 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Prosecution
AND
CAMERON BRADLEY HEWAT
Defence
Catchwords:
Criminal law - Trial of issues - Turns on own facts
Legislation:
Nil
Result:
Issue determined
Category: B
Representation:
Counsel:
Prosecution : Mr P D Yovich
Defence : Mr M T Trowell QC
Solicitors:
Prosecution : Director of Public Prosecutions (Cth)
Defence : MacLean Legal
Case(s) referred to in judgment(s):
Law v The State of Western Australia [2009] WASCA 193
Medan v The Queen [2011] WASCA 142
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
1 HALL J: On 5 March 2015 Cameron Bradley Hewat, the offender, pleaded guilty to a charge of attempting to traffic a commercial quantity of a controlled drug, namely 4-Methylethcathinone, contrary to s 11.1(1) of the Criminal Code (Cth). At the time the plea was entered it was stated on behalf of the offender that whilst he admitted the offence there was a dispute in relation to the alleged facts. The dispute was whether the offender was involved in the arrangements for the delivery of the parcel of drugs that he had received and stood to receive a significant financial benefit from the sale of its contents. The matter was set down for a trial of that issue.
2 The trial of issues was held on 19 and 20 March 2015. The nature of a trial of issues was referred to by Buss JA in Medan v The Queen [2011] WASCA 142:
A plea of guilty to an offence necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. A plea of guilty does not, however, constitute an admission of all of the facts stated in the Crown's depositions or witness statements. It is necessary for the sentencing judge to evaluate the facts, consistently with the plea, to determine the offender's culpability and decide upon an appropriate sentence. Accordingly, it is always open to an offender who has pleaded guilty to apply for a trial of issues in relation to any facts relevant to the sentencing outcome that are not the essential facts necessary to constitute the offence. See Law v The State of Western Australia [2009] WASCA 193 [25] - [34] (Buss JA, McLure & Pullin JJA agreeing) [78].
3 The legal principles governing a trial of issues are well settled. The facts found by the court for the purpose of sentencing must be consistent with the findings of guilt - in this case by means of the plea of guilty entered by the offender. To the extent that facts consistent with the finding of guilt are contested, they must be proved by the calling of evidence. Where the contested fact is aggravating the prosecution bears the onus of proof and must prove the fact beyond reasonable doubt: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; R v Storey [1998] 1 VR 359 and Law v The State of Western Australia [2009] WASCA 193.
4 In the present case all relevant facts alleged by the prosecution were admitted, with the exception of the allegation that the offender had been involved in the arrangements for the parcel to be sent and had an expectation of receiving a significant financial benefit. It was accepted by the Crown that this was an aggravating factor, in the sense that if established it would be a factor which could justify a higher sentence. In these circumstances the onus was on the Crown to prove that issue to the criminal standard.
Agreed facts
5 The following facts were admitted.
6 On 9 October 2013 a parcel identified by DHL package weigh bill number 3179419751 addressed to 'John Walter of 74B Leslie Street, Dudley Park' in Western Australia was intercepted at the Perth Gateway facility and examined by Australian Customs and Border Protection Service. The contents of the parcel were described on attached labels as being 'lavender aroma commercial sample for air fresheners and toilets'. An invoice showed it as being sent from 'Craig Evans, Bubbletubs Ltd, Unit 9 Wombourne Enterprise Park, Wolverhampton, United Kingdom'.
7 Customer officers examined the parcel and found it to contain a perfumed, white crystalline powder. A sample was tested and gave a presumptive result for 4-Methylethcathinone, which will hereafter be referred to as '4-MEC'. On 11 October 2013 Australian Federal Police (AFP) forensic officers tested a sample and confirmed the presumptive result for 4-MEC with a gross weight of 997.3 grams. On 21 October 2013 a controlled operation authority was issued and on 22 October 2013 members of the AFP conducted a controlled operation.
8 At 10.14 am on 22 October 2013, an AFP officer purporting to be a delivery driver attended at 74B Leslie Street, Dudley Park and found a note on the door signed 'John Walters'. The note asked for the package to be left at the door and said that the note's author would not be at home. The AFP officer saw movement of the blinds of the front window and a hand holding the blinds slightly open. The AFP officer wrote a message on the back of the piece of paper saying he could not leave the parcel at the door, and giving a mobile contact number. The AFP officer then began to leave the premises with the package. As the officer was walking away from the house the offender appeared at the doorway and called him back. The AFP officer then delivered the package to the offender who said his name was Cam and that he was John Walter's housemate.
9 At 11.26 am an AFP officer saw a white Toyota Starlet arrive at the house in Dudley Park. The vehicle was driven by the offender's partner, Alana Kristy Eltze. At 11.55 am the offender and Ms Eltze left the Dudley Park premises with an infant child and drove to a house in Halls Head. At about 2.12 pm the offender returned alone to the Dudley Park house. A short time later Ms Eltze also returned, carrying some alcoholic drinks.
10 At 2.31 pm AFT officers executed a search warrant at the Dudley Park premises. The offender and Ms Eltze were present. On entering the premises the parcel was seen to be open and its contents had been removed from the box it was housed in. The box was later found in the laundry of the premises. During the execution of the search warrant police officers seized a number of items including the offender's mobile telephone. The offender was cautioned and informed of his rights.
11 When spoken to during the search the offender made the following statements in relation to the package:
1. A delivery driver delivered the package earlier that morning.
2. He first saw a note on his front door regarding the package and he did not know anything about the note or who put it there. He also denied knowing or recognising the name John Walters.
3. He saw the name on the parcel and thought it may be for the owner of the premises as the name was similar. However, he told the driver that the package was for his roommate.
4. He wrote 'RTS ' (return to sender) on the package and left it by the front door as it was not for him.
5. He later went out with his partner, Ms Eltze, to her mother's house. They returned a few hours later. However, he was dropped off at the house and Ms Eltze was dropped off at Dan Murphy's to buy alcohol.
6. He used a knife to open the package as he was curious as to its contents. He opened the box within and saw there was white powder inside.
7. He did not know what the contents of the parcel were.
12 During the search warrant Ms Eltze was also cautioned and informed of her rights. She made the following comments:
1. She and the offender have a son together and have been together for approximately two years.
2. The offender was expecting a package over a week ago, or something like that. It never arrived and they discussed it. However, she did not know what was in the package.
3. The offender told her last night that he expected the package 'would be here tomorrow'.
4. The offender had a note and taped it to the front door.
5. When the offender saw the delivery driver this morning walking away he went to the front door to speak to the driver.
6. She heard the offender tell the driver that it was for his roommate.
7. When they got up, the offender told her that if the police were to do something, they would do it soon and they were to go out.
8. They arranged to go to her mother's house to help out and they did.
9. When they came back the offender went straight home to make sure that everything was okay, and she was to come home after it was safe.
10. The offender later sent her a picture message of himself with the package.
11. She came home and saw the offender had opened the package and she spoke to him about it.
12. She was not aware that the offender was expecting drugs but had an idea that what she was waiting for would be illegal.
13. She did not notify any authorities as the offender is the father of their child.
13 During the search police officers found a set of scales, a set of small weights, a quantity of clip seal bags, a glass smoking implement, two vials said by the offender to have contained steroids that he had used and a number of syringes, including some the offender said he had used to inject methamphetamine.
14 At the conclusion of the search warrant the offender was arrested and charged at Mandurah Police Station and refused bail.
15 Police viewed Ms Eltze's mobile telephone which showed a picture text message that had been sent by the offender. It showed the offender holding the package and smiling.
16 On 8 November 2013 an analyst from the National Measurements Institute produced a certificate stating that a sample of the drugs contained in the package had been tested and assessed to be 4-MEC. The analysis revealed that the purity of the sample averaged 84% and, accordingly, the total net weight of the pure drug was calculated to be 837.7 grams.
17 On 13 March 2014 Ms Eltze provided the AFP with a statement in which she stated the following. She lived with the offender at the Dudley Park premises from approximately mid-March 2013 to 22 October 2013. Their infant son, Taj, also lived with them at this address. No one else stayed with or lived with them. In about early 2013 the offender told her he was expecting something to be delivered to their home that he described as being a mix between cocaine and ecstasy, with 'the duration of cocaine but the feeling of ecstasy'. She said she told him that she did not want to be involved and he told her it would be fine and not to worry and to trust him. On the morning of 22 October 2013 the offender told her that he had put a note on the door for the parcel. The offender had a conversation with the delivery driver and had to sign for the parcel. The offender sent her a picture of himself holding a silver bag via text to her Samsung mobile telephone. She saw the offender handling the silver bag and he told her that he had opened the package. She asked him if Customs would have opened it and how much jail time it would be and he told her not to worry.
18 On 26 May 2014 AFP officers completed a forensic examination of the offender's mobile telephone. They extracted a number of Facebook messages sent by the offender which the prosecution says are indicative of an intention to traffic in the drug with others. They include:
1. A message dated 21 October 2013 at 11.13 am to a Cameron Leishman stating 'back onto that beautiful powder i was talkin to ya bout the othernight! tonorrow, shitloads! so yeh, u wanna make some serious paper? Il give ya a tester tomoz :-)'.
2. A message dated 22 October 2013 at 10.29 am to an Alexander Smith stating 'my white horse come threw today, best win ever! fuckin beauty! and i mean a big win'.
3. At 11.20 am on the same date also to Alexander Smith stating 'awww mate, im gonna share winnings alright :-P by the feeling off all the bundles of cash weighs a couple of p.ou6nds'.
4. A message dated 22 October 2013 at 12.43 pm to a Simmo Walker stating 'my horse come home babyyyy'.
5. A further message on the same day to the same person at 1.39 pm stating 'is it ok to start the party now? for my win! theres mates hell exited to start! if kewl, coz iv had absolutely not one cent of winnings for a while! or like me to wait till u can see all my winnings?'.
The factual dispute
19 At the trial of issues the issue in dispute was described in the following terms:
Whether the offender was part of a joint enterprise to traffic this drug for a significant financial advantage.
20 The prosecution relied upon the admitted facts, the prosecution brief (which was tendered by consent) and three documents listing telephone calls and text messages made to or from the offender's mobile telephone. The records included some of the text messages referred to in the admitted facts. The records also included a number of text messages that had occurred at an earlier time and appeared to relate to drug dealing.
21 Exhibit P3 was a record of text messages sent and received by the offender between 24 August 2013 and 2 September 2013. The content of the relevant messages was as follows:
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its called decyfle! i was moving hell good stuff awhile ago n fucked everyone but same time was fare bit loopage n n what not! this is inbetween pill n coke, hell good high n when iylt wares off its sweet as n ya can keep takin it too! next day ya feel fine no scatter! which is really good! thats pretty much as much as I can explain to ya, only way to know is by trying it yaself! |
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its cam! oi just letting ya know im back online, from same sauce as super:-P not as scattery tho, just good solid pill high :-P its called decyfle! n coz you havnt tried it il give samples coz i dont want ya to unsatisfied like lastime!! :-) |
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aye im back online too! fuckin sssick stuff! i can give you good price n free trial :-) i dunno if ya know but im going to jail in week n half! 95% chance anyways |
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its siiiiick, like pill n coke! good stuff, come with no satter or head fuck! let me know if ya wanna try or know anyone? it will realy help me aye! im getting money for me missus n bubs! like i said free trials |
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yeh there going well :-) really well! |
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im not really selling points aye! halfies n a more! |
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How much for half than? |
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n il sort ya out! |
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so means its 30 a point! pretty good! |
22 Exhibit P1 listed text messages sent or received by the offender between 17 October 2013 and 22 October 2013. The relevant messages were as follows:
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tonorrow, shitloads! so yeh, u wanna make some serious paper? il give you a tester tomoz :-) |
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aye! my white horse come threw today, best win ever! fuckin beauty! and i mean a big win |
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how much did ya win |
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:-P by the feeling off all the bundles of cash weights a couple p. o u6nds |
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einnins yet just heavy as farrrrk |
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dunae gets home tonight tho, so picking him up at 7 |
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see him now :-) is it ok to start the party now? for my win! theres mates hell exited to start! if kewl! coz iv had absolutely not one cent of winnings for awile! or like me to wait till u can see all my winnings? |
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Defence evidence
23 The offender gave evidence on the trial of issues. He did not seek to adduce any other evidence.
24 The offender said he was 28 years old and had been in a defacto relationship for 2½ years. He and his partner, Ms Eltze, have a two-year-old son.
25 The offender said that he had a friend named Simon Walker. He had known Mr Walker for about four years. He had bought drugs from Mr Walker. The only type of drug he had purchased from Mr Walker was called 'Decifle'. The first time he purchased that drug was 'a good couple of years back'. He started off purchasing in three grams quantities but that increased to 12 grams. The highest amount he had ever purchased at one time was 20 grams.
26 The offender said that he used Decifle himself but that his drug of choice was methylamphetamine. His consumption of Decifle did not increase over time and he used it by snorting it. During the time he was using Decifle he also used methamphetamine and ecstasy. His use of methamphetamine varied but at its worst he was using six to eight grams every couple of days. He would also use about three grams of Decifle a week. His drug use increased due to concern about a pending charge of driving without a licence. That offence had breached a suspended sentence and he was expecting to be required to serve that sentence. He ultimately served a seven month sentence for that charge after being arrested for the drug matter on 22 October 2013.
27 In late 2013 the offender said that he was living at the Dudley Park address with his partner and child. In late September he suffered a laceration to his leg and spent a week in hospital. Whilst in hospital Simon Walker came to visit him. He said that Walker said, 'By the way there's a parcel coming. Under John Walter'. Walker did not say what was in the package and the offender did not ask.
28 The offender said that he assumed the package would have something to do with drugs, but no more was said about it and the conversation with Walker was very brief. Walker said that the package would arrive within a week or so.
29 On the evening of 21 October 2013 a man, who he had only met briefly before, came to the offender's house. The man said that he was there to drop off a letter. The letter was to be placed on the front door. This had not been mentioned by Walker when he visited the offender in hospital. The note requested that the delivery driver to leave the parcel at the front door. The offender read the note and as a result expected that the parcel would arrive the next day.
30 The following morning there was knocking at the front door at about 9.00 am to 10.00 am. The offender went to the front door and opened it and saw a delivery driver with a parcel. The driver asked the offender if he could sign for the parcel and whether it was for him. The offender said, 'No' but that the person to whom the parcel was addressed was his flatmate. He signed for the parcel, the driver gave it to him and left.
31 The offender then wrote the words 'RTS' (return to sender) on the parcel. He said he did that because he was told to do so by the man who had dropped off the note the previous evening. He did not ask why it was necessary to do this. He then placed the parcel by the front door. He and his partner then left the house about half an hour later. They went to his partner's mother's house. He said that he did this because he was suspicious that there was 'something in it' and that the police might be nearby. He assumed that the contents were probably drugs.
32 About two and a half to three hours later the offender returned to the Dudley Park house. He came back separately from his partner so that he could check the premises by himself. The package was still by the front door. He then picked it up and took it to the kitchen. He opened the package using a steak knife. He said that he did this because he was 'curious to see exactly how much was in it or what was in it'. He said that he was also planning to steal some of the drugs.
33 On opening the package he found a large silver bag. Inside that bag was a quantity of crystalline yellow powder. He said it did not have the same appearance as the drug Decifle that he had previously purchased. It should be noted at this point that the drug originally contained in the package had been substituted by the police and there was no evidence as to what the original drug looked like. Within a minute or so of opening the package police entered and he was arrested.
34 The offender denied that there was any arrangement between he and Walker that he would receive any part of the contents of the package. He said that he formed an intention of stealing some of the package when he opened it and saw the quantity contained within it. He thought that he could steal some without it being noticeable. If he had stolen some of the drug he would have used part of what he stole and sold the rest. He said that he realised that Walker was going to distribute or sell the drug but there was never any discussion between them in regard to the offender selling any of it on Walker's behalf. He did not know what the drug was worth. He accepted that in this timeframe, that is between 2012 and 2013, he had been engaged in selling drugs.
35 In cross-examination the offender accepted that the drugs he was selling included ecstasy, cocaine, methamphetamine and Decifle. He agreed that he would sell any drug that he got hold off. He denied receiving packages on any previous occasion.
36 The offender accepted that Walker was a friend and was not a person that he would want to doublecross or cheat. He agreed that Walker was a drug dealer and that it could cause trouble for him if he stole from a drug dealer. He also accepted that if he doublecrossed or stole from Walker he may no longer supply drugs to him. He accepted that in the past Walker had provided Decifle to him and he had sold it on to others. He agreed that as a result of purchasing and selling Decifle he had a pretty clear idea of what it cost and what he could sell it for. It was less expensive than methylamphetamine and cocaine though he considered it to be a better drug than cocaine. He agreed that it had a similar effect to ecstasy and cocaine.
37 The offender denied that in early October he had told his partner that he was expecting a package containing stuff that was supposed to be like a mix between cocaine and ecstasy. He maintained this denial despite the fact that an allegation to this effect was contained in the statement of facts, which had been admitted.
38 In regard to the package the offender admitted that he did not ask Walker why the package was being sent to him or what Walker wanted him to do with it. He said that he was given no instructions in regard to the package because it was expected that by the time it arrived he would be in gaol for the driving offence. He did not go to gaol in the expected timeframe but was on bail with a home curfew on the evening of 21 October 2013. He did not know when the parcel was coming until the man came to his house with the note on that evening. His belief at that point was that the parcel would arrive the next day. He said there was no discussion regarding him receiving any reward for receiving the parcel and he had no expectation of doing so. He said he was not asked to receive the parcel, just told that it would be arriving.
39 The offender was asked to account for the text message that he sent to Cameron Leishman on the morning of 21 October 2013. He accepted that that message was referring to Decifle but had been sent before he knew that the package was arriving the next day. In those circumstances he was asked to account for the meaning of the words 'tomorrow, shitloads!'. He denied that this was a reference to the package. He said that Walker had rung him that morning and said, 'I've got some good news. I've got something for you'. He assumed that this was drugs but he did not know that it was a reference to the package until the man came with the note that evening. He said that it was these other drugs that he was intending to sell to Leishman.
40 The offender also conceded that messages that he sent to Alexander Smith referring to his 'white horse' coming through today were a reference to drugs and that those messages had been sent prior to him opening the package. He said that this did not reflect an expectation or intention on his part that he would be able to sell the drugs, rather he was 'big noting' himself. He accepted that the messages did refer to the large amount of drugs contained in the package and an intention to sell it for a profit. However, he denied that this was an intention that he had had all along.
41 The offender also accepted that after opening the package he sent messages to Walker including one that read 'my horse came home, baby'. He denied that this was any indication that he had an interest in the package, rather he said that he was 'fishing', that is letting Walker know that he knew what was in the package in the hope of eliciting a response. He accepted that his message referred to 'my horse' rather than 'your package' but denied that this was any indication that there was a joint enterprise. His later message to the effect 'is it okay to start the party now' was a reference to opening and using the drugs but not to selling it for Walker.
Findings
42 I did not find the offender to be a credible witness. His account of how the arrangement came to be made with Walker was inherently unlikely. Given that Walker was a drug dealer from whom he had regularly purchased drugs and that he must have suspected that any parcel would contain drugs, it is unlikely that he would agree to be a passive recipient of a parcel without at least asking some questions. Even on his own account it was obvious that the parcel would contain drugs. The offender's suggestion that he was prepared to accept the substantial risk involved in receiving a large parcel of drugs without any promise or expectation of reward, or indeed any clear instructions as to what was to occur when it was received, was highly improbable. The fact that the offender said that he expected to be in prison at the time the parcel arrived does not explain what he says occurred because in those circumstances the parcel would be delivered to the house where his partner and child were living.
43 The text messages contained in exhibit P3 in the August to October period indicate that the offender was actively dealing in drugs. He accepted that this was so in his evidence. He also accepted that he was receiving Decifle from Walker and on-selling it. There was, therefore, by the time the parcel was received an existing commercial relationship between the offender and Walker in relation to the sale of drugs. That relationship increases the likelihood that the offender's agreement to receive the parcel was made pursuant to an arrangement whereby he would receive some portion of the contents for sale.
44 The fact that the offender told his partner some weeks prior to the parcel arriving that it would contain a drug with properties similar to cocaine and ecstasy, shows that he had more knowledge of the arrangements than he claimed. Despite admitting this fact, he later denied it in his evidence; a denial that I did not find convincing. It is also telling that the offender said in evidence that Walker had telephoned him prior to the package arriving to say 'I've got good news. I've got something for you'. If this was said it is more consistent with the offender having an interest in the drugs than in him being a mere post box.
45 The text messages on 21 and 22 October 2013 permit only one reasonable inference. That is that the offender, having received the parcel, believed that a significant portion of it would be available to him to sell to others. His claim that he was merely 'big noting' himself appears to be a suggestion that the messages should not be taken at face value. Yet the messages were not only sent to potential purchasers but to Walker himself. It is unlikely in the extreme that the offender would be 'big noting' himself to Walker if the truth was that the offender had no interest in the drugs and no arrangement with Walker that he would receive a portion of the drugs for sale.
46 I am satisfied beyond reasonable doubt that there was an arrangement between Walker and the offender for him to receive the parcel on the basis that the offender would receive a significant financial benefit for doing so. The exact size of that benefit is impossible to determine. There was no evidence as to the value of the drug because it is a relatively new drug and little information is available as to its commercial value. However, the high purity, large quantity and similarity of the drug to cocaine and ecstasy are indicative that this parcel of drugs must have had very substantial value.
47 It is not possible to place the offender with precision within the hierarchy of drug dealing. However, it would be an error to suppose that it is necessary to make a precise determination as to the offender's place in that hierarchy, it is frequently impossible to do so and the offender should be sentenced on the basis of what he did: R v Olbrich [19]. The prosecution accepted that the offender was subordinate to Walker, but that he nonetheless played a critical role in this criminal enterprise and I accept that categorisation.
48 These reasons will be provided to the parties to enable submissions to be made when the offender is sentenced on 13 April 2015.
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