R v Pearce
[2020] QSC 114
•13 May 2020
SUPREME COURT OF QUEENSLAND
CITATION: R v Pearce [2020] QSC 114 PARTIES: R (Crown) v
NATHAN JAMES PEARCE(accused) FILE NO: Indictment No 527 of 2019 DIVISION: Trial Division PROCEEDING: Sentence ORIGINATING Supreme Court at Brisbane COURT: DELIVERED ON: 13 May 2020 DELIVERED AT: Brisbane HEARING DATE: 17 and 24 April 2020 JUDGE: Davis J ORDER: Findings as appear in the reasons. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – EVIDENCE – GENERALLY – where accused pleaded guilty
to one count of possessing a dangerous drug in excess of two grams and one count of possessing a dangerous drug in excess
of 200 grams – where there is dispute as to what inferences ought to be drawn from the facts – where the Crown sought to
prove that the accused was the beneficial owner of the methylamphetamine and cocaine and therefore the principal of
the commercial enterprise – where the accused sought to categorise his possession as in the capacity of a courier –
whether the inference should be drawn that the accused was the beneficial owner of the methylamphetamine and cocaine and intended to commercially apply the methylamphetamine and cocaine
CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – FACTUAL BASIS FOR SENTENCE – EVIDENCE – GENERALLY – where accused pleaded guilty
to one count of producing a dangerous drug in excess of two
grams – where there is dispute as to what inferences ought to be drawn from the facts – where the Crown sought to prove
that the accused physically produced the gamma hydroxybutyric acid (GHB) and that it was possessed by the
accused for a commercial purpose – whether the inference
should be drawn that the accused was the beneficial owner of
the GHB and personally produced the GHB and intended tocommercially apply the GHB for the benefit of himself
Criminal Code, s 205A
Drugs Misuse Act 1986, s 4, s 5, s 6, s 7, s 9, s 10, s 10A, s 14
Evidence Act 1977, s 132CPolice Powers and Responsibilities Act 2000, s 154, s 154A
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Clare v R [1994] 2 Qd R 619, followed
R v Boney; ex parte Attorney-General (Qld) [1986] 1 Qd R
190, cited
R v D [1996] 1 Qd R 363, cited
R v De Simoni (1981) 147 CLR 383, followed
R v Van Huynh [2003] QCA 371, cited
R v Jobson [1989] 2 Qd R 464, cited
R v Kovacs [2009] QCA 52, cited
R v Morrison [1999] 1 Qd R 397, cited
R v Nardozzi [1995] 2 Qd R 87, cited
R v Olbrich (1999) 199 CLR 270, followed
R v Ta [2018] QCA 342, cited
Savvas v The Queen (1995) 183 CLR 1, followed
Shepherd v The Queen (1990) 170 CLR 573, citedStrbak v The Queen (2020) 94 ALJR 374, followed
COUNSEL: TL Corsbie for the Crown
AJ Kimmins for the accusedSOLICITORS: Director of Public Prosecutions for the Crown
AW Bale & Sons Solicitors for the accused
On 7 February 2020, Nathan James Pearce pleaded guilty before Burns J to five counts against the Drugs Misuse Act 1986 as follows:
Count 1
that on the ninth day of February 2018 at Southport in the State of Queensland, NATHAN JAMES PEARCE unlawfully had possession of the dangerous drug methylamphetamine.
And the quantity of the dangerous drug exceeded 200.0 grams.[1]
[1] Drugs Misuse Act 1986, s 9(1)(a).
Count 2
that on the ninth day of February 2018 at Southport in the State of Queensland, NATHAN JAMES PEARCE unlawfully had possession of the dangerous drug cocaine.
And the quantity of the dangerous drug exceeded 2.0 grams.[2] Count 3
that on the ninth day of February 2018 at Southport in the State of Queensland, NATHAN JAMES PEARCE unlawfully had possession of the dangerous drug buprenorphine.[3]
Count 4
that on a date or dates unknown between the twenty-sixth day of November 2017 and the tenth day of October 2018 at Robina or elsewhere in the State of Queensland, NATHAN JAMES PEARCE unlawfully produced the dangerous drug gamma hydroxybutyric acid.
And the quantity of the drug exceeded 2.0 grams.[4] Count 5
that on the ninth day of February 2018 at Robina in the State of Queensland, NATHAN JAMES PEARCE unlawfully had possession of the dangerous drugs alprazolam, buprenorphine and testosterone.[5]
[2] Drugs Misuse Act 1986, s 9(1)(b).
[3] Drugs Misuse Act 1986, s 9(1)(d).
[4] Drugs Misuse Act 1986, s 9(1)(d).
[5] Drugs Misuse Act 1986, s 9(1)(d).
On 17 April 2020, Mr Pearce came before me for sentence. A document titled “Statement of Facts” was tendered by the Crown.[6] It appears as Schedule “A” to
[6] Exhibit 4 on the sentence.
these reasons. There was dispute as to what inferences ought to be drawn from the
facts. My resolution of those disputes is as follows.Background
In summary, on 9 February 2018 the police located Mr Pearce unconscious in a motor vehicle of which he was the sole occupant. Mr Pearce was clearly under the influence of some substance and an empty syringe was found in the car. A search of the vehicle revealed a secret compartment in the glovebox in which was located 1,397.5 grams of a substance containing 1055.3 grams of methylamphetamine (count 1) and 105.691 grams of a substance containing 47.539 grams of cocaine (count 2). In the glovebox itself was located 52 Suboxone films containing eight grams of buprenorphine (count 3).
There were eight packets of methylamphetamine and four packets of cocaine.
The packets of methylamphetamine contained powder varying in weight from 496.6 grams to 73.211 grams, although six of the packets contained powder weighing between 137.461 grams and 138.548 grams. None of the methylamphetamine is in quantities which could be regarded as typical street dealing weights.
There were two smaller packets of cocaine weighing 5.523 grams and 6.406 grams, one containing 26.257 grams and the largest being 67.505 grams. Again, none of these are typical street dealing weights.
Also found in the car was some jewellery and a folding knife. On Mr Pearce’s person
was found $1,560.20 in cash.
The search of the vehicle led police to travel to, and search, Mr Pearce’s residence.
At the residence there was found:
(a) demineralised water; (b) sodium hydroxide; (c) a quantity of 4-hydroybutanoic acid lactone (GBL); (d) 331.5g of gamma hydroxybutyric acid (GHB) (count 4); (e) a heat sealer; (f) two Xanax tablets (alprazolam) (count 5); (g) two vials of testerone (count 5); (h) two packets of Suboxone film (buprenorphine) (count 5); (i) five rolls of vacuum bags; (j) two sets of digital scales; and (k) eight mobile phones.
Mr Kimmins of counsel, who appeared for Mr Pearce, accepted the truth of the statement of facts, however it was not accepted that Mr Pearce:
1. physically produced the GHB; or 2. that the GHB was possessed by Mr Pearce for a commercial purpose.
Those denials were not inconsistent with the plea of guilty to count 4 on the indictment. GBL is an ingredient used to produce GHB. Possession of the ingredients to produce GHB is an act preparatory to producing the drug and therefore the
possession constitutes “producing” the dangerous drug.[7]
[7] Drugs Misuse Act 1986, s 4 and definition of “produce”; see paragraph (c) of the definition.
In the course of argument,[8] it also became apparent that there was dispute as to the
[8] On 17 April 2020.
nature of Mr Pearce’s possession of the methylamphetamine the subject of count 1
and the cocaine the subject of count 2. In order to distil the issues, I ordered the Crown to specify the facts it sought to be found and to identify precisely the evidence from which those facts are alleged to be proved. The sentence was then adjourned to 24 April 2020.
[12] The Crown produced a document titled “Crown outline of inferences and
particulars”.[9] That document had attached to it a bundle of witness statements. The
[9] Exhibit 6 on the sentence.
document (without the witness statements) is attached as Schedule “B” to these
reasons.
When the matter came before me on 24 April 2020, Mr Kimmins submitted that the evidence identified by the Crown did not support the inferences sought. After argument, Mr Kimmins indicated that he did not require any of the Crown witnesses for cross-examination and did not intend to call witnesses. He did, though, tender a
statement of Hannah Lovejoy, who is Mr Pearce’s de facto partner.[10] Mr Corsbie,
[10] Exhibit 9 on the sentence.
who appeared for the Crown, did not seek to cross-examine Ms Lovejoy.
Mr Kimmins and Mr Corsbie then argued the case on the written materials. It is accepted by Mr Corsbie that his case is, relevantly to the matters in issue, entirely circumstantial. The issue is what inferences are drawn from uncontested primary facts.
Legal principles
By his plea of guilty, Mr Pearce relieved the Crown of the necessity to prove the elements of each count on the indictment. It has never been in doubt that the Crown bears the onus of proof of any further facts upon which an offender is to be sentenced.
Following differences of judicial opinion as to the standard of proof required of those additional facts,[11] s 132C of the Evidence Act 1977 was enacted. It provides:
[11] R v Jobson [1989] 2 Qd R 464 at 468 and 475, R v Nardozzi [1995] 2 Qd R 87 at 89 and R v Morrison [1999] 1 Qd R 397.
“132C Fact finding on sentencing
(1) This section applies to any sentencing procedure in a
criminal proceeding.(2)
The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.
(3)
If an allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.
(4)
For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.
(5) In this section— allegation of fact includes the following—
(a)
information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act;
(b)
information under the Youth Justice Act 1992, section 150(4A) or in a pre-sentence report under section 151 of that Act;
(c)
information given to the court under the Penalties and Sentences Act 1992, section 179K;
(d) other information or evidence.”
By s 132C, the onus of proof of contested facts remains on the Crown. The standard of proof is the balance of probabilities. Section 132C(4) is clearly a statutory version of the principles explained by Dixon J (as his Honour then was) in Briginshaw v Briginshaw.[12]
[12] (1938) 60 CLR 336 at 360 and following.
Recently, in Strbak v The Queen,[13] the High Court explained the relevant principles as follows:
[13] (2020) 94 ALJR 374, 381 at [32].
“[32] A plea of guilty is the formal admission of each of the legal ingredients of the offence. For this reason, as the joint reasons in R v Olbrich[14] explain, references to the onus of proof in the context of sentencing may be misleading if they are taken to suggest that some general issue is joined between prosecution and defence. Nonetheless, where the prosecution seeks to have the court sentence on a factual basis that goes beyond the facts admitted by the plea, and which is disputed, it is incumbent on the prosecution to adduce evidence to establish that basis. Absent contrary statutory provision, the prosecution is required to prove matters on which it relies that are adverse to the interests of the offender to the criminal standard. The adoption of the lesser, civil standard for proof of facts in sentencing under s 132C of the Act says nothing as to onus of proving a fact that
[14] (1999) 199 CLR 270.
is not admitted or is disputed.”
The dispute between the parties
There was no contest about the drugs the subject of counts 3 and 5. They were intended by Mr Pearce for his personal use and no commercial intent was sought to be attributed to him.
There was also no contest that there was a commercial purpose behind Mr Pearce’s
possession of the large quantity of methylamphetamine which is the subject of count 1 and the large quantity of cocaine which is the subject of count 2. In other words, Mr Kimmins accepted that Mr Pearce did not intend to consume all the drugs himself but intended to sell some. That was a correct and sensible conclusion.
Mr Corsbie sought to prove that Mr Pearce was the “beneficial owner” of the methylamphetamine[15] and cocaine[16] and therefore the “principal” of the commercial enterprise. Mr Kimmins sought to categorise his client’s possession as in the capacity of a “courier”. That no doubt was the catalyst which led Mr Corsbie to formulate his assertions in terms of “beneficial ownership” of the drugs.
[15] Count 1.
[16] Count 2.
There is always a danger in attempting to categorise criminal behaviour when the categories are not recognised in the statutory provisions against which the offender has offended. However, it is inevitable, as sentencing patterns emerge, that particular features will reappear from case to case and be regarded as significant. Where an offender who is transporting drugs for another person, and the benefit to be received is effectively a fee for so doing, such offenders have been regarded as less culpable than those upon whose direction they were acting. Such offenders are often regarded
as “couriers”. Many cases have considered sentences for offenders who perform that
limited role.[17] Within those general labels of “principal” and “courier” lurk infinite
variations which may be relevant to an offender’s culpability.[17] For example, R v Kovacs [2009] QCA 52, R v Van Huynh [2003] QCA 371, R v Ta [2018] QCA 342 at [27].
Ultimately, the sentencing function is to ascertain a fair and just sentence taking into account all relevant considerations. The description of offenders in terms of
“principals” or “couriers” may be convenient, but the central issue in every case is as
to what the Crown has proved that the offender has done.[18]
[18] R v Olbrich (1999) 199 CLR 270 at [19].
In relation to count 4, the central issues are:
(a) did Mr Pearce physically produce the drug; and (b) was it produced for his own consumption or for sale to others? The cocaine and the methylamphetamine (counts 1 and 2)
Before turning to the facts alleged by the Crown (from which inferences are sought to be drawn), there are a number of observations which should be made:
1. The vehicle in which Mr Pearce was located was not his. 2.
While there are some documents in the car which belong to Mr Pearce, there is no evidence which proves how long he was in possession of the car before he was intercepted by police.
3.
There is no evidence suggesting that Mr Pearce was a party to the construction of the secret compartment in the glovebox.
4.
Mr Pearce was not charged with any offence concerning the jewellery found in the hidden compartment.
5.
Apart from evidence that the jewellery was found in the compartment, there is no evidence about the jewellery at all. There is no evidence of its true owner. There is no evidence as to whether the jewellery was stolen. There is no evidence of the value of the jewellery.
6.
There is no evidence (such as telephone intercepts, surveillance, etc) of any movements or other activity of Mr Pearce beyond him being found on 9 February 2018 in the car.
7.
There is no evidence as to the ultimate source of either the methylamphetamine or the cocaine.
8.
There is no identification of the intended recipient(s) of the methylamphetamine, the cocaine or the GHB.
9.
Mr Pearce has spent very little time over the last few years in the community and has no assets of note.
10.
Mr Pearce has a long-term drug addiction which, according to Ms Lovejoy is chronic.
11. A toxicology test conducted on the day of Mr Pearce’s arrest discerned nine substances in his blood. Those included methylamphetamine, cocaine and
GHB.
While Mr Pearce pleaded guilty to five counts, he has not, on the material before me, been convicted of, and therefore does not fall to be sentenced on:
1. trafficking in the cocaine, methylamphetamine, GBL or GHB found in his possession;[19] 2. supplying the cocaine, methylamphetamine or GHB in his possession;[20] 3. being in possession of the mobile phones, heat sealer or plastic bags for the purposes of the commission of an offence against the Drugs Misuse Act;[21] or 4. being in possession of the jewellery or the cash as proceeds of an offence against the Drugs Misuse Act.[22] [19] Drugs Misuse Act 1986, s 5.
[20] Drugs Misuse Act 1986, s 6.
[21] Drugs Misuse Act 1986, s 10.
[22] Drugs Misuse Act 1986, s 7.
It is well-established that the Crown cannot seek to have an offender sentenced on the facts established by evidence if what is established is an offence more serious than the one to which the offender has been convicted, or is an offence of which the offender has not been convicted.[23] Beyond that principle, the task of ascertaining what facts can, or cannot be taken, as a matter of law, into account on any particular sentence can be difficult.[24]
[23] R v De Simoni (1981) 147 CLR 383, Savvas v The Queen (1995) 183 CLR 1, R v Boney; ex parte Attorney-General (Qld) [1986] 1 Qd R 190 and R v Olbrich (1999) 109 CLR 270.
[24] R v D [1996] 1 Qd R 363 at 367.
It was therefore not open to find that the cocaine and methylamphetamine (or, for that matter, the GBL or GHB) was possessed by Mr Pearce for the purpose of him conducting an on-going business of supplying the drugs. Such conduct would constitute trafficking in dangerous drugs and trafficking was not charged.
Although acts preparatory to supply drugs can constitute the offence of supply[25] (with which Mr Pearce has not been charged), the Drugs Misuse Act recognises that possession can be for a commercial purpose[26] and therefore contemplates possession for the purposes of intended supply.
[25] Drugs Misuse Act 1986, s 4 and definition of “supply”.
[26] Section 14.
For the reasons I will explain, the fact of Mr Pearce being in possession of the jewellery and the cash, does not support the inferences sought to be drawn by the Crown so questions of the status of those uncharged acts do not arise in that respect. Mr Kimmins dealt with the possession of the telephones, the heat sealer and plastic bags (all of which could have been the subject of charges)[27] as factual matters relevant to counts 1 and 2, so I will proceed on the basis that such a course was open.
[27] Drugs Misuse Act 1986, s 10A
[31] Mr Corsbie rightly submitted that as he sought to prove relevant facts circumstantially, any strength in his case comes from the body of evidence as a whole rather than from single individual pieces of evidence which may on their own prove little or nothing. To use the language of the High Court in Shepherd v The Queen,[28] the individual pieces of evidence are strands which together may form a cable[29] which has a strength beyond that of each strand.
[28] (1990) 170 CLR 573.
[29] At 579.
However, each individual primary fact must, if it is to contribute to the ultimate finding, be in some way relevant. Some of the primary facts offered here do nothing more than invite speculation, whether received individually or with other facts.
Mr Corsbie submitted that the fact that Mr Pearce was intercepted by police in peak hour traffic was suggestive that he was not a courier but a principal because, it was submitted, a courier would not drive in peak hour traffic because there was a greater risk of interception. [30] A person seeking to avoid detection may travel at times of the day or night when there is little traffic on the road so to avoid any congestion and limit the time on the road. On the other hand, someone attempting to avoid detection
[30] Primary fact 1; page 2 of Schedule B to these reasons.
may deliberately travel in peak hour traffic so as to “blend with the herd” so to speak.
The fact is intractably neutral and adds nothing to the Crown case.
Mr Corsbie then pointed to the fact that Mr Pearce had a learner class licence, was on parole and had a significant criminal history.[31] It was submitted that a prudent drug
[31] Primary facts 2, 3 and 4; page 2 of Schedule B to these reasons.
dealer, (a “principal”), would not select a person such as Mr Pearce to act as courier
because, with those features, Mr Pearce is more likely to attract the attention of police. In the clandestine world of illicit drugs, those who become involved often have
criminal histories and personal issues including an inability to retain a driver’s
licence. These facts tend to support the evidence of Ms Lovejoy[32] that Mr Pearce is hopelessly addicted to drugs and his life is chaotic. Those features are not otherwise probative of any allegation which Mr Corsbie seeks to prove.
[32] See Exhibit 9 on the sentence. Her evidence is uncontested in any event.
Mr Corsbie pointed to the police finding the quantity of jewellery in the hidden
compartment[33] and the fact that “jewellery is often used in lieu of cash payment for
[33] Primary fact 5; page 2 of Schedule B to these reasons.
dangerous drugs”.[34] To make such findings as Mr Corsbie invites, is to find that
[34] Primary fact 6; page 2 of Schedule B to these reasons.
Mr Pearce possessed the jewellery as proceeds of an offence against the Drugs Misuse
Act 1986. Mr Pearce has not been charged with such an offence.[35][35] Drugs Misuse Act 1986, ss 7, 10A(1)(d).
In any event, Mr Pearce’s possession of the jewellery takes the matter nowhere. In
circumstances where the Crown has led no evidence whatsoever about the jewellery (apart from it being found in the car), the suggestion that the jewellery is the price that Mr Pearce has accepted for some unidentified drug transaction is pure speculation. If anything, what evidence there is favours the drawing of an inference that the jewellery was unrelated to any drug activity concerning the methylamphetamine or the cocaine. There is no evidence that the jewellery was particularly valuable. The drugs were packaged into fairly large amounts, each package being likely to well exceed the street value[36] of some jewellery which might or might not be stolen property.
[36] Agreed statement of facts, paragraphs 10 and 11.
I am not prepared to find that the cash of $1,560 is the proceeds of a drug transaction. To do so would be to find that Mr Pearce has committed an offence[37] even though he has not been convicted of that offence. However, the fact that Mr Pearce was not working,[38] the fact that he gave an explanation for the money which cannot be true,[39] and the fact that the methylamphetamine and cocaine had been broken down into smaller amounts,[40] generally supports the inference that Mr Pearce was engaged in the commercial disposal of the drugs. That inference is also strengthened by the
[37] Drugs Misuse Act 1986, s 10A.
[38] Primary fact 8; page 2 of Schedule B to these reasons.
[39] Primary fact 9; page 2 of Schedule B to these reasons.
[40] Primary fact 10; page 2 of Schedule B to these reasons.
presence at Mr Pearce’s residence of the heat sealer,[41] plastic bags[42] and digital
[41] Primary fact 11; page 3 of Schedule B to these reasons.
[42] Primary fact 12; page 3 of Schedule B to these reasons.
scales.[43]
[43] Primary fact 13; page 3 of Schedule B to these reasons.
The finding of fingerprints on the bags of methylamphetamine and cocaine proves that the accused has handled the bags, but the presence of an unidentified fingerprint
assists Mr Kimmins’ submissions, for reasons I will later explain.
I intend to ignore Mr Pearce’s failure to provide the PIN codes to the police for the
mobile telephones found at his residence. It is an offence for him to refuse to supply that information unless he has a reasonable excuse.[44] He has not been convicted of that offence[45] and it would be inappropriate for me to proceed on the basis that he has committed it and that he has no reasonable excuse for so doing. There is no evidence of any communications by Mr Pearce with anyone else. There is no evidence of any communication Mr Pearce may have made using the telephones. The fact of his possession of eight mobile telephones suggests that he is involved in some way in the commercial dealing in drugs. That does not advance the Crown case past the obvious. Mr Pearce was found in possession of over a kilogram of pure methylamphetamine and 47.539 grams of pure cocaine, both for commercial purposes, as he has admitted.
[44] Police Powers and Responsibilities Act 2000, ss 154, 154A; Criminal Code, s 205A.
[45] Although he has been charged; transcript of 24 April 2020, T1-27 and 28.
Possession of the mobile phones does not cast any light on the extent of Mr Pearce’s
involvement with the drugs.
The fact that the vehicle had a hidden compartment in the glovebox[46] is of little assistance to the Crown in the absence of proof of how long Mr Pearce had the vehicle. Even if the presence of the personal documents in the glovebox supported some inference that Mr Pearce had the vehicle for some time,[47] it does not follow that
[46] Primary fact 17; page 4 of Schedule B to these reasons.
[47] I do not draw those inference.
I should draw the inference that Mr Pearce knew “he was to be transporting large
quantities of dangerous drugs for sale on an ongoing basis”.[48] Mr Pearce has pleaded
[48] Primary fact 18; page 4 of Schedule B to these reasons.
guilty to possession of the drugs, so he knew of their presence in the compartment.[49] Whether that is indicative of some ongoing activity depends upon how long he had the car and how long he intended to keep the car, and there is no evidence of these things.
[49] Clare v R [1994] 2 Qd R 619 at 637, knowledge being an element of possession.
Of particular significance, is the fact that Mr Pearce is chronically drug addicted and has no money. The drugs are worth at least $267,000.[50] Mr Pearce clearly does not have the capital to acquire drugs in those quantities. When confronted with that
[50] Agreed statement of facts, paragraphs 10 and 11.
proposition, Mr Corsbie submitted that Mr Pearce must have obtained the drugs “on tick”.[51] In other words, he negotiated a price which would be paid over the period
[51] Transcript of 24 April 2020, T 1-17.
that he sold the drugs. That might be so. However, there is nothing to support that
contention.
The fact that other people were involved with the drugs is supported by the location of an unidentified fingerprint on the bags of cocaine and methylamphetamine.[52]
[43] Various issues arise from the configuration of the packaging of the methylamphetamine and the cocaine. The Crown case is that the drugs were all packaged by Mr Pearce at his residence. Even the smallest amount of methylamphetamine which was packaged (73.211 grams) is what might be described as a wholesale amount. There is some consistency in the six bags of methylamphetamine which all fall between 137.470 grams and 138.548 grams but they are all almost twice the smaller amount (73.211 grams) and well under half of the larger amount (496.6 grams). There is no consistency in the packages of cocaine. Presumably then, they have been packaged for different wholesale customers with different requirements.
[52] Statement of Sergeant Slect at [8]-[11].
However, methylamphetamine and cocaine was found in the vehicle after it had been
packaged (on the Crown case, at Mr Pearce’s residence). There is no suggestion that
the drugs would be divided further into even smaller amounts by Mr Pearce. The
inference which the Crown seeks to draw is that Mr Pearce is the “principal” in the
distribution of methylamphetamine in wholesale amounts, including one of almost half a kilogram. In determining whether the Crown have proved that very serious allegation on the balance of probabilities, I must take into account the serious consequences to Mr Pearce of such a finding.[53] I am not prepared to make such a finding.
[53] Evidence Act 1977, s 132C(4).
Mr Pearce clearly possessed the drugs with a commercial purpose in mind. That is admitted by him and is amply supported by the evidence. There are, on the evidence before me, two real possibilities. The first is that Mr Pearce purchased the drugs on credit and was dealing in his own right. The alternative is that Mr Pearce was dealing with the drugs in some way, they were owned by some other person and Mr Pearce was receiving some agreed benefit. In either case, given that Mr Pearce had no money of his own to contribute to the venture, he would no doubt have been under the strict control of the person from whom he obtained the drugs.
In the course of argument, Mr Corsbie conceded as much. He said:
“MR CORSBIE: Given the number of factors, I concede it would be
open that he was dealing with these drugs, that is, moving them, selling them, recovering cash, and intended to do so under the
direction of another.”[54]
[54] Transcript of 24 April 2020, T 1-17.
Given the uncontested evidence of Ms Lovejoy, I draw the inference that Mr Pearce’s
motivation was not substantial profit, but rather just the generation of sufficient funds
to feed his own addiction.
I now make formal findings in relation to the inferences sought to be drawn by the Crown concerning the methylamphetamine and cocaine.
The defendant was the beneficial owner of the methylamphetamine and cocaine
located in the hidden compartment in the glovebox of the vehicle.[55]
[55] The first inference sought by the Crown; page 1 of Schedule B to these reasons.
For the reasons given, I am not prepared to find this. As already observed, the inferences that are open are that Mr Pearce purchased the drugs on credit or alternatively he was dealing with them on behalf of someone else. As both inferences are equally open, the Crown has failed to prove the fact alleged. Mr Pearce should be sentenced on the basis that he had no real ownership or other interest in the drugs other than transporting them and dealing with them (including packaging them) under the direction of the true owner.
The defendant intended to commercially apply the methylamphetamine and cocaine
for the benefit of himself.[56]
[56] The second inference sought by the Crown; page 1 of Schedule B to these reasons.
For the reasons already given, I do not find this. Mr Pearce was clearly intending to benefit from whatever role he played, but the Crown has not proved that he had a large financial stake in the activity and his benefit was probably limited to the extent of funding his own habit. He should be sentenced on that basis.
The gamma hydroxybutyric acid (count 4)
During the course of argument, Mr Kimmins identified an error (obviously honestly
made) in Mr Corsbie’s written submissions. The relevant paragraphs are 19 to 23:
“19.
The three red jerry cans were in two locations. The jerry can with pure GBL was located in the garage with an empty jerry can. The jerry can with the produced GHB was located under the kitchen sink.
The jerry cans being in two locations is inconsistent with
their solely being stored at the defendant’s residence.
20. GHB can be produced from GBL using water and sodium hydroxide.
21. The defendant possessed GBL, demineralised water and sodium hydroxide (caustic soda).
The defendant possessed all the necessary ingredients to produce GHB from GBL.
22. Demineralised water and caustic soda were in the kitchen cupboard under the sink with the jerry can that held the produced GHB as the sodium salt. They were not boxed or hidden.
The ingredients being loose under the sink is inconsistent with their being stored for later use.
23. GHB in this sodium salt form is consistent with having been converted from GBL using demineralised water and sodium hydroxide (caustic soda).
The GHB located in the Jerry can under the sink had been produced using the demineralised water and caustic soda
located under the kitchen sink.”
There were three jerry cans located. Two were found in the garage and one under the kitchen sink. However, the jerry can under the kitchen sink was empty. The two jerry cans found in the garage contained the liquid. Mr Kimmins submits that is significant because Mr Corsbie, in paragraph 23 of his submissions, seeks to rely upon the location of the demineralised water, the caustic soda and the quantity of GHB all being in the kitchen as suggestive that the GHB was manufactured in the kitchen. Mr Kimmins submits that once it is understood that the GHB was in the garage, not the kitchen, the inference that the GHB was only being stored by Mr Pearce (rather than having been manufactured by him) is reasonable and to be preferred.
However, in my view, there is a strong circumstantial case that the GHB found in
Mr Pearce’s residence was produced by him and, having regard to the relevant
principles I have earlier identified, I so find.
Daniel Smart is a forensic chemist employed by Queensland Health and a member of the Clandestine Laboratory Investigating Chemists Association. He has experience with the processes that are used in the manufacture of illicit drugs. He says in his statement that one process of producing GHB is to convert GBL to GHB using sodium hydroxide and water.
At Mr Pearce’s house, police found:
1. GBL; 2. sodium hydroxide (caustic soda); 3. demineralised water; 4. GHB; and 5. a PH testing kit and a pool testing kit (although there was no pool at the residence).
The only reasonable inference to be drawn from the presence of the ingredients to manufacture GHB, and the presence of the GHB, together with chemical testing kits, is that the process of converting GBL to GHB occurred at the house. There is no suggestion of any other person in or about the house producing the GHB so I am satisfied, having regard to the principles which I have identified earlier, that the Crown have proved that Mr Pearce produced the GHB found by police.
Frankly, the alternative hypothesis is fanciful. That alternative theory is that the presence of the GHB, and all the ingredients to manufacture it, is a mere coincidence and the GHB has been manufactured by some other party and is simply being stored by Mr Pearce. I rejected that submission on the way to making the findings that I have.
The Crown seeks a finding that the production was for a commercial purpose. Mr Corsbie accepts that the only factors from which such an inference can be drawn is the substantial quantities of GBL[57] and GHB[58] which were located.
[57] 532.7g; Agreed statement of facts, paragraph 21.
[58] 331g; Agreed statement of facts, paragraph 20.
The categorisation of a particular possession of illicit drugs as one that is
“commercial” or “for personal use” often tends to cloud the real issues. The real
issues are:
1. what is actually intended by the offender as the ultimate use of the drugs; and 2. how does that affect culpability?
Mr Corsbie accepts that Mr Pearce is not only a heavy user of illicit drugs, but he is
a user of GHB. The toxicology report showed GHB in Mr Pearce’s system on the day of his arrest. Mr Corsbie’s submission is not, as I understand it, that I should find that Mr Pearce did not intend to ingest some of the GHB himself. Mr Corsbie’s
submission is that primarily the drug was intended for commercial sale.
There is no evidence here of:
(a) any actual supplies of GHB by Mr Pearce to any person; or (b) any acts by Mr Pearce preparatory to supply, for example, packaging of the liquid.
Mr Pearce, at least at the time of his arrest, was heavily addicted to drugs. He had, in relation to the methylamphetamine and cocaine that was the subject of counts 1 and 2, involved himself in commercial dealings with drugs (in the manner that I have found) in order to support his own habit. I have no doubt that if an opportunity arose to sell a quantity of GHB to fund other drug purchases, Mr Pearce would do so. However, I find that apart from a willingness to take advantage of such an opportunity, the
motivation for Mr Pearce’s production of GHB was for personal use.
I now make formal findings in relation to the inferences sought to be drawn by the Crown concerning the GHB.
The defendant was the beneficial owner of the gamma hydroxybutyric acid located at
his residence.[59]
[59] The third inference sought by the Crown; page 1 of Schedule B to these reasons.
I find that as proved.
The defendant personally produced the gamma hydroxybutyric acid located under
the kitchen sink.[60]
[60] The fourth inference sought by the Crown; page 1 of Schedule B to these reasons.
The GHB was not located under the kitchen sink, but I find that the GHB which was located at the house in the garage had been physically produced by Mr Pearce himself.
The defendant intended to commercially apply the gamma hydroxybutyric acid for
the benefit of himself.[61]
[61] The fifth inference sought by the Crown; page 1 of Schedule B to these reasons.
I find that Mr Pearce produced and possessed the GHB for his own personal use but would avail himself of any opportunity to sell at least part of the substance if the opportunity arose and the opportunity was a favourable financial one.
"A"
THE QUEEN
-v-
NATHAN JAMES PEARCE
STATEMENT OF FACTS
Count Offence Legislation & Maximum Drug Penalty
1 Possessing a dangerous Drugs Misuse Act 1986 1.0553kg of pure
drug, in excess of 200.0g Section 9(1)(a) methylamphetamine in
25 years imprisonment 1.3975kg of substance
2 Possessing a dangerous Drugs Misuse Act 1986 105.691g of pure cocaine in
drug, in excess of 2.0g Section 9(1)(b) 47.539g of substance 25 years imprisonment
3 Possessing a dangerous Drugs Misuse Act 1986 52 Suboxone films, each
drug Section 9(1)(d) containing 8 mg of
15 years imprisonment buprenorphine
4 Producing a dangerous Drugs Misuse Act 1986 331.5g of GHB in 1.1201kg of
drug, in excess of 2.0g Section 8(1)(d) liquid 20 years imprisonment
5 Possessing a dangerous Drugs Misuse Act 1986 2 Suboxone films
drug Section 9(1)(d) (buprenorphine), 2 Xanax
15 years imprisonment tablets (alprazolam) and
testosterone
Background
1. At approximately 9:35am on Friday, 9 February 2018 police were called to respond to an unconscious driver in a blue Ford sedan at the intersection of Smith Street and Olsen Avenue, Parkwood.
2. Police located the defendant unconscious in the driver’s seat of the Ford. The defendant was on
parole, having been released from custody on 27 November 2017.
3. The car was stationary at the traffic lights on Smith Street. The defendant was slumped over the steering wheel. The keys were in the ignition. There was no one else in the vehicle. Police
observed a syringe in the front passenger’s foot well.
4. The defendant made a choking noise. Police tilted his head back and the defendant regained consciousness. Police noticed his skin was sweaty, cold and pale.
5. The defendant provided his wallet to police when asked for identification. Police located
$1,560.20 cash in the defendant’s wallet which was seized.
6. The defendant told police he had taken Xanax and Valium. When asked about the syringe, the defendant said that he used steroids.
7. The defendant was taken by Ambulance to the Gold Coast University Hospital.
Search of vehicle
8. Police conducted a search of the vehicle. Various documents addressed to the defendant were located in the glovebox, along with 52 Suboxone films, each containing 8mg of buprenorphine (count 3). There was a small trap door inside the glovebox which allowed access to a void in the dashboard.
9. In the hidden dashboard compartment, police located 12 plastic bags containing crystal and powered substances. The bags contained dangerous drug in the weights and purities below:
Item no. Result of analysis Gross weight Purity Pure weight
(g) (%) (g)
1 Methylamphetamine 137.470 75.9 104.339 2 Methylamphetamine 496.600 75.4 375.400 3 Methylamphetamine 137.461 75.2 103.370 4 Methylamphetamine 137.955 75.7 104.431 5 Methylamphetamine 138.019 75.7 104.480 6 Methylamphetamine 138.281 75.6 104.540 7 Methylamphetamine 138.548 75.8 105.019 8 Methylamphetamine 73.211 74.8 54.761
Total methylamphetamine 1397.500 - 1055.300 (count 1)
9 Cocaine 67.505 40.2 27.137 10 Cocaine 26.257 52.3 13.732 11 Cocaine 5.523 49.8 2.750 12 Cocaine 6.406 61.2 3.920
Total cocaine 105.691 - 47.539 (count 2)
10. 1.397.5kg of methylamphetamine would cost approximately $250,000 to purchase wholesale (average $180,000 per kg). Its street value could be anywhere from approximately $300,000 if
sold at $750 per ‘eight ball’ (3.5g) to almost $700,000 if sold at $50 per ‘point’ (0.1g). The
median purity of methylamphetamine seized by Queensland police in 2016-17 was 73.3%.1
11. 105.691g of cocaine would cost approximately $17,000 to purchase wholesale (average $4,500 per ounce). Its street value could be anywhere from approximately $20,000 if sold at $2,700
per half ounce (14g) to $63,000 if sold at $60 per ‘point’ (0.1g). The median purity of cocaine
seized by Queensland police in 2016-17 was 33.2%.2
12. The defendant’s possession of the methylamphetamine and cocaine was for a commercial
purpose. That inference is drawn from the quantity and purity of the drugs in the defendant’s
possession, as well as their wholesale values, and his possession of a large amount of Australian
currency.13. An assortment of jewellery was also located inside the dashboard, and a folding knife was located in the centre console.
14. The vehicle was towed to a holding yard.
1 Australian Criminal Intelligence Commission, Illicit Drug Data Report, p 143.
2 Australian Criminal Intelligence Commission, Illicit Drug Data Report, p 149.
15. The defendant was arrested at the Gold Coast University Hospital by officers who had accompanied him there. A sample of his blood was taken in accordance with a requirement by police. The toxicology results were as follows:
Methylamphetamine 0.09 mg/kg Diazepam ~0.2 mg/kg Noriazepam 0.20 mg/kg Oxazepam 0.03 mg/kg Temazepam 0.02 mg/kg Cocaine 0.07 mg/kg Benzoylecgonine >1.6 mg/kg Methylecgonine 0.05 mg/kg Gamma-Hydroxybutyric Acid ~130 mg/kg
Alcohol Not detected
16. The defendant was transported to the Southport Watch House where he declined to participate in a recorded interview with police.
17. Police obtained an order for access information pursuant to section 154A of the Police Powers and Responsibilities Act 2000 in relation to three mobile phones that were found in the
defendant’s vehicle. The defendant refused to provide the access codes to the phones, stating
that it was private.
Search of residence
18. Police obtained a search warrant for the defendant’s residence at Unit 10, 42 Stadium Drive,
Robina. The defendant’s partner, Hannah Lovejoy, was present during its execution on 9
February 2018 at 4:55pm. Lovejoy declared a heat sealer at the address.
19. During a search of the defendant’s residence, police located an empty 5L red jerry can, a 5L plastic bottle labelled ‘Demineralised Water and four plastic containers labelled ‘CAUSTIC
SODA’ (each containing granules of sodium hydroxide) underneath the kitchen sink. The
defendant’s fingerprint was later located on one container.
20. Two matching 5L red jerry cans were found in the garage. One contained 1.1201kg of a
viscous, colourless liquid in which 331.5g of gamma hydroxybutyric acid (‘GHB’) as a sodium
salt was detected. 4-hydroybutanoic acid lactone (GBL) was also detected in this liquid. 331g
of GHB has an approximate value of $1,655 when sold in 1-3 mL quantities for $5 per mL.
21. The other 5L red jerry can in the garage contained 532.7g of GBL.
22. A Chemist offered an opinion in relation to the process of converting GBL to GHB using sodium hydroxide and water. The Chemist opined that the results of the analysis of the exhibits
seized during the search of the defendant’s residence were consistent with some exhibits having
been used in the manufacture of GHB from GBL It was his opinion that the exhibit in paragraph
20 was consistent with a mixture of GBL, sodium hydroxide and water.23. The defendant had produced the 331.5g of GHB by converting GBL to GHB using sodium
hydroxide and water (count 4). The defendant’s possession of GBL was an act preparatory, in furtherance of, or for the purpose of producing GHB (count 4 cont.) The defendant’s
production of GHB was for a commercial purpose.
24. Police also located:
a. Two Xanax tablets (each containing alprazolam) in the TV cabinet in the lounge room (count 5); b. Two vials of testosterone under the stairs (count 5 cont.); c. Two packets of Suboxone film in a cut Coca Cola can inside the kitchen pantry (count 5 cont.). The defendant’s fingerprint was later located on the can.
d. A vacuum sealing machine and five rolls of vacuum bags in the kitchen pantry e. Two sets of digital scales f. Eight mobile phones.
25. The defendant declined to be interviewed in relation to this matter.
26. The defendant was charged and remanded in custody.
"B"
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