R v Tinker

Case •

[2019] NSWDC 945

•

22 July 2019

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Tinker [2019] NSWDC 945
Hearing dates: 18 June 2019; 19 June 2019; 20 June 2019
Date of orders: 22 July 2019
Decision date: 22 July 2019
Jurisdiction:Criminal
Before: King SC DCJ
Decision:

Findings of guilt on Counts 1, 4, 5, 6, 7, and 10 (Counts 2, 3, 8 and 9 pleaded to on 18/6/19)

Catchwords:

Criminal – verdicts and reasons for judgment – judge alone trial – ten counts – drug supply – cannabis leaf, cannabis resin – manufacture of large commercial & supply of commercial quantities of tetrahydrocannabinol - drug possession – cannabis sativa plants – 2 firearms offences, unauthorised possession of a double-barrel shotgun & a paintball gun - deal with the proceeds of crime, $49,830 AUD, reckless as to whether it was the proceeds of crime – Crown and Defence cases detailed – findings

Legislation Cited:

Crimes Act 1900

Drug (Misuse and Trafficking) Act 1985

Category:Principal judgment
Parties: Regina
Simon Tinker
Representation:

Counsel:
Crown: Mr P Lynch
Accused: Mr A Wong

Solicitors:
Crown: Mr W Logan
Defence: Mr I Vizintin
File Number(s): 2017/00333687; 2017/00333690

Judgment

Introduction

  1. On 19 June 2019 the accused Simon TINKER was called for trial. He was arraigned on an indictment that contained 10 charges. He pleaded not guilty to 6 of the charges and guilty to the remaining 4.

Trial by Judge Alone

  1. On the day listed for the accused’s trial, he elected for trial by judge alone. An election signed by the accused’s Counsel, Mr Wong, and containing consent by the Director of Public Prosecutions was filed in court on 19 June 2019.

The Charges and Pleas

  1. The 10 charges:

  1. On the 25th day of May 2017, at Kingsford in the State of New South Wales, did supply a prohibited drug, namely, 67.2 grams of Cannabis leaf.

Plea entered: Not Guilty

  1. On the 25th day of May 2017, at Kingsford in the State of New South Wales, did supply a prohibited drug, namely, 502.33 grams of tetrahydrocannabinol, being an amount not less than the commercial quantity applicable to that drug.

Plea entered: Guilty

  1. Between the 24th day of May 2017 and the 4th of November 2017, at Daceyville in the State of New South Wales, did manufacture a prohibited drug, namely 8,873.76 grams of tetrahydrocannabinol, being an amount not less than the large commercial quantity applicable to that drug.

Plea entered: Guilty

  1. Between the 24th day of May 2017 and the 4th day of November 2017, at Daceyville in the State of New South Wales, did supply a prohibited drug, namely 8,873.76 grams of tetrahydrocannabinol, being an amount not less than the large commercial quantity applicable to that drug.

Plea entered: Not Guilty

  1. Between the 24th day of May 2017 and the 4th day of November 2017, at Daceyville in the State of New South Wales, did supply a prohibited drug, namely, 2.4 kg of cannabis leaf.

Plea entered: Not Guilty

  1. Between the 24th day of May 2017 and the 4th day of November 2017, at Daceyville in the State of New South Wales, did supply a prohibited drug, namely, 14.1 grams of cannabis resin.

Plea entered: Not Guilty

  1. On the 3rd day of November 2017, at Daceyville in the State of New South Wales, did cultivate a prohibited plant, namely, 7 cannabis sativa plants.

Plea entered: Not Guilty

  1. On the 3rd day of November 2017, at Daceyville in the State of New South Wales, did possess a firearm, namely, a double barrel shotgun, not being authorised to do so by a licence or permit.

Plea entered: Guilty

  1. On the 3rd day of November 2017, at Daceyville in the State of New South Wales, did possess a prohibited firearm, namely, a paintball gun, not being authorised to do so by a licence or permit.

Plea entered: Guilty

  1. On the 3rd day of November 2017, at Daceyville in the State of New South Wales, did deal with the proceeds of crime, namely, $49,830 AUD being reckless as to whether it was the proceeds of crime.

Plea entered: Not Guilty

  1. Accordingly the only counts for determination at trial are Counts 1, 4, 5, 6, 7 and 10.

  2. Each of Counts 1, 5 and 6 is for an offence contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (the “Act”).

  3. Count 4 is for an offence contrary to s 25(2) of the Act.

  4. Count 7 is for an offence contrary to s 23(1)(a) of the Act.

  5. Count 10 is for an offence contrary to s 193B(3) of the Crimes Act 1900.

  6. In respect of Counts 4 and 5 the prosecution relies on s 29 (a) of the Act:

s 29A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless:

(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply

  1. Tetrahydrocannabinol and cannabis leaf are each a prohibited drug as provided by s 3(1) and Schedule 1 of the Act which also specifies the “traffickable” quantity.

  2. In respect of tetrahydrocannabinol the “traffickable” quantity is not less than 3 grams.

  3. In respect of cannabis leaf the “traffickable” quantity is not less than 300 grams.

  4. Relevant to Count 4 is s 4 of the Act which provides:

4. Admixture

In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug.

  1. Relevant to Count 4 is that a large commercial quantity of THC is 2 kg. Schedule 1 to the Act.

  2. The total amount of each drug was:

Count 4 - tetrahydrocannabinol 8,873.76 grams

Count 5 – cannabis leaf 2.4 kg

  1. In respect of Count 1 - Cannabis Leaf (67.2 grams) and Count 6 – Cannabis Resin (14.1 grams) the respective quantity of leaf or resin is less than the relevant “traffickable” quantity as provided by the Act (Traffickable: Cannabis leaf - 300 grams; Cannabis resin - 30 grams) and accordingly s29 of the Act does not apply.

  2. The Act does not provide a “traffickable” quantity in respect of Cannabis Sativa plants. [Count 7 – 7 x Cannabis sativa plants]

The Crown Case

  1. Only two witnesses were called in the Crown case.

Det Sgt Achala ABDULLAH:

In summary, at 6.05 pm on 1 November 2017 during surveillance of 1 Solander Road, Daceyville, a vehicle with Damien Viso, as driver and only occupant, stopped outside the premises and Mr Viso carrying in his left hand a black enviro bag, appearing to be empty, entered the premises. At 6.30 pm Mr Viso returned from the premises to the motor vehicle carrying the black enviro bag over his right shoulder. Surveillance of the vehicle was maintained until it was stopped by police near the intersection of Denison Road and Smith Street, Daceyville. A search of the vehicle located the black enviro bag which contained 2 x vacuum sealed bags of approximately 1 lb of cannabis leaf (Exhibit 5 – Surveillance video and two still photographs.) of close similarity to the 3 x bags located in the main bedroom and 1 x bag located in the second draw of the filing cabinet at the accused’s premises on 3 November 2017, each containing approximately 1 lb of cannabis leaf. (Agreed facts 13d and 13f - Images 13 and 15 – Exhibits 4A, 4B and 4C)

In addition Det Abdullah gave evidence as to the search of 1 Solander Road on 3 November 2017, items located and conversation he then had with the accused and his arrest.

In addition he gave evidence of the accused’s mobile phone being lawfully intercepted from 4 August 2017 and a number of calls between 9:18 am on 9 August 2017 and 8:34 am on 5 October 2017 were played and transcripts provided (Exhibit 3). His evidence was that he had monitored in excess of 2000 calls and had noted only one call enquiring about the accused’s services as a concreter. The call was not returned by the accused.

Det Snr Cst David BIRD:

Det Bird was called to give expert evidence as to value of the prohibited drugs, the varying forms in which they are available and as to the use of “code” references in the intercepted calls of the accused.

THC is the psychoactive chemical and can be found in a variety of forms. Cannabis leaf including bud, cannabis resin and cannabis oil and may be in liquid form, thick paste or hard block. Cannabis leaf, resin and oil may be ingested by eating and varying methods of smoking such as mixed with tobacco or in a water bong or vaporiser. Resin and oil may be sold or supplied in block form; small vials; compressed between folded pieces of paper; bindles or in paste form.

There is insufficient data available to be able to provide an opinion as to the value of THC but it is a marketable product.

Cannabis bud has a greater market value than cannabis leaf having, in general, a higher content of THC. Cannabis leaf is generally sold in quantities of grams, ounces and pounds. The price in NSW in 2017 was $10 to $20 per gram; $250 to $320 per ounce and $2,200 to $3,400 per pound. Therefore 2,416.07 grams of cannabis leaf would have a wholesale value of between $11,500 and $18,000 and a retail value if sold in grams of between $24,200 and $ 48,400. Bud would be towards the higher end of the ranges.

In respect of the intercepted telephone calls, Exhibit 3, his evidence was that a number of them contained veiled references consistent with a desire to disguise communications relating to drug supply.

Product No. 467: 9 August 2017 at 9:18 am – An enquiry from a user for cannabis resin to be used in a vaporiser pen/pipe and being prepared to pay extra for the stronger version referred to as “el diablo”. The accused undertakes to contact the purchaser when he is leaving to make the delivery.

Product No. 2684: 15 August 2017 at 11:56 am – An enquiry as to the availability of a prohibited drug referred to by the parties as “Five Star”, which the accused indicates is not available but having available: “Three options … all on a par on potency … Big Buddha Cheese, THC Bomb and Super Skunk …they’re potent as fuck and taste beautiful.” [As the accused in the call indicates that he has been “dabbing” “Big Buddha” it appears that they are talking about different cannabis oils or resins rather than leaf or bud. “Dabbing” is a term used by the accused when using resin or oil in a pipe in which it can be heated and vaporised.]

Product 2759: 15 August 2017 at 7:01pm – Enquiry as to purchasing “a hundred dollar jar of honey later in the evening” being a reference to cannabis oil. Also an enquiry as to whether the accused was prepared to deliver to others on the north side of the harbour.

Product 2784: 15 August 2017 at 8:01pm – A request to the accused to supply cannabis product;

“… one full one …I’ll get a QP and uh, the small, small pot. Like the quarter pot of honey … and I’ll get one oil.”

Product 4475: 23 August 2017 at 12:18am – An enquiry of the accused as to supply of a prohibited drug referred to as “Ladyboy” and having been previously supplied by the accused with “honey” and its effect.

Product 14484: 17 September 2017 at 12:26pm – Voice message left for accused.

“Hi Simon; Mary. I’ve got my friend here who’s after those two jars. Um hopefully you can make it today. Four three. Thanks, bye.”

A request for cannabis oil consistent with previous calls and references to “honey”.

  1. Consistent with admissions by the accused and the defence case references to “honey”, “jars” and ”pots” are references to honey adulterated with THC and supplied to others by the accused.

  2. A number of exhibits were tendered without objection, as follows:

Exhibit 1 – Agreed Facts Pursuant to s 191 of the Evidence Act 1995 together with 9 copy photographs of relevant matters taken on 25 May 2017 when the accused’s motor vehicle was stopped and searched at Kingsford and copy photographic images 10 to 40 taken on 3 November 2017 at the accused’s residence at 1 Solander Road, Daceyville.

Exhibit 2 – Statement of Cst Nicholas Slater, 16 October 2017 and signed 12 December 2017.

Exhibit 3 – Audio CD of 13 intercepted phone calls between the accused and others between 9:18am on 9 August 2017 and 8:34am on 5 October 2017;

Audio CD of 1 intercepted phone call between the accused and another on 15 August 2017 at 7:19 pm. (Product No. 2759);

Transcript of each of the intercepted calls as an aide memoir.

Exhibit 4A – DVD of search of the accused’s premises in his presence on 3 November 2017;

Transcript of conversation between accused and police during search.

Exhibits 4B and 4C – DVDs of search of the accused’s premises in his absence on 3 November 2017.

Exhibit 5 – DVD of video of stop and search of Damien Viso and 3 photographs of him arriving and departing from 1 Solander Road, Daceyville, on 1 November 2017.

Exhibit 6 – DVD of ERISP with accused on 3 November 2017 and photos shown during interview;

Transcript as aide memoir.

Exhibit 7 – Photos - 5 images taken from the accused’s mobile phone.

Exhibit 8 - DVD of 3 video files taken from the accused’s mobile phone.

Exhibit 9 – St George Bank envelope addressed to Simon Tinker, Tinkers Concreting Services, 1 Solander Rd, Daceyville NSW 2032

  1. The Agreed Facts, Exhibit 1, was tendered at the commencement of the trial and are as follows:

  1. That on 25 May 2017 vehicle BDG22S driven by the accused was stopped by police;

  2. That the vehicle was legally searched by police;

  3. That during the search, police located the following:

  1. 3 plastic packages containing a total of 66.1 grams of cannabis leaf;

(IMAGE NUMBER: 3 to 5)

  1. 1 re-sealable plastic bag contained 1.1 grams of cannabis leaf;

(IMAGE NUMBER: 6)

  1. 1 glass container with containing 185.2 grams of Tetrahydrocannabinol. The container had the following black writing on the lid "$500, 9.7, 34";

(IMAGE NUMBER: 7)

  1. 1 glass container containing 310.7 grams of Tetrahydrocannabinol. The container had the following black writing on the lid "$470, 30, $500"

(IMAGE NUMBER: 8)

  1. 5 glass containers containing 6.45 grams of Tetrahydrocannabinol;

(IMAGE NUMBER: 9)

  1. That the above items were conveyed to Forensic & Analytical Science Service for examination and confirmed to be the substances referred to above;

  2. That Forensic & Analytical Science Service did not examine purities of the above­mentioned substances;

  3. That on 4 August 2017, police obtained Telecommunications Intercept Warrant C16775-00-00 for mobile number 0404 218 404.

  4. That on 20 September 2017, police obtained Telecommunications Intercept Warrant C16775-01-00 for mobile number 0404 218 404.

  5. That the accused's mobile number is 0404 218 404.

  6. That between 7 August 2017 and 2 November 2017 police intercepted mobile phone calls and text messages to and from mobile number 0404 218 404.

  7. That on 3 November 2017, property [at] 1 Solander Road, Daceyville, was subject to a police search warrant;

  8. That the property was legally searched by police;

  9. That the accused was the occupant of 1 Solander Road, Daceyville;

  10. That during the course of that search, the following items were located:

  1. Cannabis smoking utensils in the laundry;

(IMAGE NUMBER: 10)

  1. A 'Homebox' brand grow tent on the veranda;

(IMAGE NUMBER: 11)

  1. Two boxes of “Rosin 719” vapour pens;

(IMAGE NUMBER: 12)

  1. Three vacuum sealed bags containing 449g, 450g and 460g of cannabis leaf located in the main bedroom;

(IMAGE NUMBER: 13)

  1. Four re-sealable plastic bags containing 37.5g, 2.5g, 45.5g and 2.2g of cannabis leaf located in the top draw of the filing cabinet;

(IMAGE NUMBER: 14)

  1. Two vacuum sealed plastic bags containing 448g and 111.8g of cannabis leaf in the second drawer of the filing cabinet

(IMAGE NUMBER: 15)

  1. Two re-sealable plastic bags containing 213.8g of cannabis leaf in the third drawer of the filing cabinet. Each re-sealable bag had the text "mould" written on the front;

(IMAGE NUMBER: 16)

  1. A bag of [unfilled] plastic vials located in the fourth drawer of the filing cabinet;

(IMAGE NUMBER: 17)

  1. 7 cannabis plants located in an Esky cooler located in the kitchen

(IMAGE NUMBER: 18.1 - 18.2)

  1. A bag of cannabis leaf weighing 162.5g located in the kitchen beside a scale;

(IMAGE NUMBER: 19)

  1. Three containers containing 29.19g of cannabis oil on top of the washing machine in the laundry;

(IMAGE NUMBER: 20)

  1. Three glass jars containing 188.85g of cannabis oil, one plastic container containing 1.78g of cannabis oil in the study/dining area;

(IMAGE NUMBER: 21)

  1. .A blue coloured container with 1.84g of cannabis resin, a foil package containing 0.3g of cannabis leaf and a plastic container containing 0.7g of cannabis leaf in the bottom drawer of the desk in the study;

(IMAGE NUMBER: 22)

  1. Two open bottles on the computer desk with 12 yellow tablets labelled THC. The tablets contained 2.78g of cannabis oil;

(IMAGE NUMBER: 23)

  1. $1130 cash in the accused's wallet;

(IMAGE NUMBER: 24)

  1. $40,000 in 4 x $10,000 lots in vacuumed sealed bags in the main bedroom;

(IMAGE NUMBER: 25)

  1. Two vacuum sealed bags in the bottom drawer of the freezer in the kitchen. One bag contained $6000 in $50 notes. The other bag contained $1000 in $100 notes;

(IMAGE NUMBER: 26)

  1. Five re-sealable plastic bags containing a total of 10.72g of cannabis leaf in the kitchen. The bags had black writing depicted on the front including 4 with '$130', one with '$100';

(IMAGE NUMBER: 27.1- 27.4)

  1. In the butter drawer of the fridge:

a plastic bag with three capsules containing 0.6g of cannabis oil,

a plastic bag containing 20.74g of cannabis oil,

a re-sealable plastic bag containing 2.1g of cannabis oil,

a plastic package containing 5.42g of cannabis oil,

a paper package containing 2.88g of cannabis oil,

a plastic container containing 0.78g of cannabis oil,

a plastic container containing 0.69g of cannabis oil,

a rubber container containing 0.83g of cannabis oil;

(IMAGE NUMBER 28.1 - 28.2)

  1. A number of yellow cardboard envelopes on the shelf above the work bench in the shed;

(IMAGE NUMBER: 29)

  1. A yellow envelope containing grease paper covered in oily paste containing 0.52g of cannabis oil on the kitchen bench;

(IMAGE NUMBER: 30)

  1. A vacuum sealed bag containing 11.1g of cannabis leaf inside a plastic drawer of a filing cabinet in the shed;

(IMAGE NUMBER: 31)

  1. A re-sealable plastic bag containing 4.25g of cannabis leaf,

a re-sealable plastic bag containing 6.2g of cannabis leaf,

a clear glass container containing 4.92g of cannabis resin above the oven in the shed;

(IMAGE NUMBER: 32)

  1. 7.34g of cannabis resin in two re-sealable plastic bags;

(IMAGE NUMBER: REFER TO SEARCH WARRANT VIDEO)

  1. [Two only of] Three stainless steel saucepans containing 4,053g and 4,562g of cannabis oil in the shed;

(IMAGE NUMBER: 34 to 34.3)

  1. A Samsung mobile phone under the mat on the driver's side foot well of vehicle DPT16P located in the driveway of the property

(IMAGE NUMBER: 35)

  1. A glass jar containing 1.6g of cannabis oil in the centre console of vehicle DPT16P;

(IMAGE NUMBER: 36)

  1. Vacuum seal machines located in the kitchen and under computer desk.

(IMAGE NUMBER: 37)

  1. That the above-mentioned items were conveyed to Forensic & Analytical Science Service for examination and were confirmed to be the substances referred to above;

  2. That Forensic & Analytical Science Service did not examine purities of the above­mentioned substances;

  3. That the total quantity of cannabis leaf located at 1 Solander Road, Daceyville was 2.4 kilograms;

  4. That the total quantity of cannabis oil located at 1 Solander Road, Daceyville was 8,873.76 grams;

  5. That the total quantity of cannabis resin located at 1 Solander Road, Daceyville was 14.1 grams;

  6. That during the search, police located a 'ROSIN' manufacture press in the shed.

  7. That during the search, police located an oven in the shed.

  8. That during the search, police also located the following:

  1. A bushmaster Sl, Australian Automatic Arms paintball gun, in the main bedroom under the bed;

(IMAGE NUMBER: 39)

  1. A BOITO brand side by side double barrelled shotgun in the main bedroom under the bed.

(IMAGE NUMBER: 40)

  1. That Binod Bohora, Crime Scene Officer attached to Forensic Ballistic Investigation Section, examined the above-mentioned items and confirmed the following:

  1. The bushmaster Sl, Australian Automatic Arms paintball gun, is a prohibited firearm; and

  2. The BOITO brand side by side double barrelled shotgun is a firearm.

  1. That Julieanne Andrews, Team Leader attached to the Firearms Registry, certifies that the accused was not an authorised holder of a Firearms Licence in New South Wales; and

  2. The police conducted a Cellbrite download of the accused’s mobile phone.

  1. There is no dispute as to the finding of any of the prohibited drugs or plants or that they are the prohibited drug or plant referred to. There is no dispute as to the location of the shotgun and paintball gun. There is no dispute that the accused was in possession of all of the items located in the vehicle driven by him on 25 May 2017 or present at 1 Solander Road on 3 November 2017.

  2. The Crown relies on a number of individual items referred to in the agreed facts as totalling the amount of the prohibited drug or plant referred to in the relevant defended count and depicted in the photographs referred to in Exhibit 1 as follows:

Count 1: Located during the vehicle stop on 25 May 2017 at Kingsford.

  • 3 x vacuum sealed bags - cannabis leaf - 66.1 grams

Agreed fact - 3a (Images 3, 4 and 5)

  • 1 re-sealable plastic bag - cannabis leaf – 1.1 grams

Agreed fact - 3b (Image 6)

Total – 67.2 grams.

Count 4: Located during the search at 1 Solander Road, Daceyville, and accused’s motor vehicle present, on 3 November 2017.

  • Glass jar – THC – from vehicle - 1.6 grams

Agreed fact – 13aa (Image 36)

  • 3 x plastic containers – THC - top of washing machine – 29.19 grams

Agreed fact – 13k (Image 20)

  • 3 x glass containers – THC – study/dining area – 188.85 grams

Agreed fact – 13l (Image 21)

  • Plastic container – THC – study/dining area – 1.78 grams

Agreed fact – 13l (Image 21)

  • Paper – THC – in yellow envelope on kitchen bench – 0.52 grams

Agreed fact 13u (Image 30)

  • Saucepan – THC – in shed – 4,053 grams

Agreed fact – 13y (Image 34)

  • Saucepan - THC in shed – 4,562 grams

Agreed fact – 13y (Image 34)

  • 2 x plastic containers with 12 tablets – THC - on computer desk – 2.78 grams

Agreed fact - 13n (Image 23)

  • 3 x capsules – THC – fridge butter draw – 0.6 grams

Agreed fact - 13s (Images 28.1 to 28 .2)

  • Re-sealable plastic – THC - fridge butter draw – 20.74 grams - Agreed fact - 13s (Images 28.1 to 28.2)

  • Re-sealable plastic crushed capsules – THC - fridge butter draw – 2.1 grams

Agreed fact - 13s (Images 28.1 to 28.2)

  • Plastic package– THC - fridge butter draw – 5.42 grams

Agreed fact - 13s (Images 28.1 to 28.2)

  • Plastic package – THC - fridge butter draw – 2.88 grams

Agreed fact - 13s (Image 28.1 to 28.2)

  • Plastic container – THC - fridge butter draw – 0.78 grams

Agreed fact - 13s (Image 28.1 to 28.2)

  • Plastic container – THC - fridge butter draw – 0.69 grams

Agreed fact - 13s (Image 28.1 to 28.2)

  • Plastic container – THC - fridge butter draw – 0.83 grams

Agreed fact - 13s (Image 28.1 to 28.2)

Total – 8,873.76 grams

Count 5: Located during the search at 1 Solander Road, Daceyville, and accused’s motor vehicle present, on 3 November 2017.

  • 3 x vacuum plastic package – Cannabis leaf – main bedroom - 449 grams, 450 grams, 460 grams

Agreed fact – 13d (Image 13)

  • 2 x vacuum plastic package – Cannabis leaf – second draw filing cabinet - 448 grams, 111.8 grams,

Agreed fact – 13d (Image 15)

  • Black plastic – finely ground cannabis leaf – above vacuum oven in shed – 4.25 grams

Agreed fact - 13w (Image 32)

  • 5 x re-sealable bags – processed cannabis leaf - each containing one “Moonrock” ball, four with “$130” and one with “$100” written on it + descriptors of cannabis strains – kitchen – 10.72 grams

Agreed fact – 13r (Images 27.1 to 27.4)

  • Plastic package – Cannabis leaf – kitchen bench – 162.5 grams

Agreed fact – 13j (Image 19)

  • Plastic package – Cannabis leaf – top draw filing cabinet – 37.5 grams

Agreed fact – 13e (Image 14)

  • Paper bag – Cannabis leaf – top draw filing cabinet – 2.5 grams

Agreed fact – 13e (Image 14)

  • Plastic package – Cannabis leaf – top draw filing cabinet – 45.5 grams

Agreed fact – 13e (Image 14)

  • Re-sealable plastic package – Cannabis leaf – top draw filing cabinet – 2.2 grams

Agreed fact – 13e (Image 14)

  • 2 x plastic package – Cannabis leaf – third draw filing cabinet – 213.8 grams

Agreed fact – 13g (Image 16)

  • Plastic package – Cannabis leaf – plastic draw in filing cabinet – 11.1 grams

Agreed fact – 13v (Image 31)

  • Re-sealable plastic bag – cannabis leaf – above vacuum oven in shed – 6.2 grams

Agreed fact – 13w (Image 32)

  • Foil package – cannabis leaf – bottom draw of desk in study – 0.3 grams

Agreed fact – 13m (Image 22)

  • Plastic container – cannabis leaf – bottom draw of desk in study – 0.7 grams

Agreed fact – 13m (Image 22)

Total 2,416.7 grams – [Charged amount 2.4 kg]

Count 6: Located during the search at 1 Solander Road, Daceyville, on 3 November 2017.

  • 2 x re-sealable plastic bags – cannabis resin – top draw filing cabinet – 7.34 grams

Agreed fact – 13x (Refer to search warrant video Exhibits 4a, 4b and 4c)

  • Glass jar – cannabis resin – above vacuum oven in shed – 4.92 grams

Agreed fact - 13w (Image 32)

  • Plastic container – cannabis resin – bottom draw of desk in study – 1.84 grams

Agreed fact – 13m (Image 22)

Total 14.1 grams

Count 7: Located during the search at 1 Solander Road, Daceyville, on 3 November 2017.

Esky in kitchen – cannabis sativa plants – seven seedlings.

Agreed fact – 13i (Images 18.1 to 18.2)

  1. Also relevant to the Crown case in respect of the defended counts are the type of prohibited drug, the quantity and location of them in respect of the counts to which the accused has pleaded guilty. (Counts 2 and 3)

Count 2: Located during the vehicle stop on 25 May 2017 at Kingsford:

  • 1 glass container with 185.2 grams of THC. The container had the following black writing on the lid "$500, 9.7, 34".

Agreed fact – 3c (Image 7)

  • 1 glass container with 310.7 grams of THC. The container had the following black writing on the lid "$470, 30, $500".

Agreed fact – 3d (Image 8)

  • 5 x glass containers with a total of 6.45 grams THC.

Agreed fact – 3e (Image 9)

Total – 502.35 grams [Charged 502.33 grams]

Count 3: Located during the search at 1 Solander Road, Daceyville, on 3 November 2017.

(As referred to in Count 4 at paragraph 23)

  1. Also relied on as part of the Crown’s circumstantial case are a number of items referred to in the agreed facts or evident from viewing Exhibits 4A, 4B and 4C (the search of 1 Solander Road, Daceyville.):

  • Scales

  • 3 x vacuum sealing machines (2 x on kitchen bench and 1 under computer desk.)

  • Plastic bags for use in vacuum sealers.

  • Rosin press in shed.

  • Vacuum oven in shed.

  • Bongs and pipes in laundry.

  • 2 x boxes of “vaping pens” on veranda. (Containing hundreds of pens in commercial packaging.)

  • “Homebox” brand grow tent on veranda in unassembled state together with bags of potting mix.

  • Money contained in vacuum sealed bags:

4 x $10,000 in vacuum sealed bags in main bedroom.

1 x $6000 in $50 notes and 1 x $1000 in $100 notes in vacuum sealed bags in freezer.

  • Plastic bag containing multiple empty capsules in filing cabinet.

  • Bundle of small empty yellow envelopes with logo of bearded skate board rider located in shed (Agreed fact - 13t Image - 29) and one of the same envelopes located in the kitchen with baking type paper in it with 0.52 grams of THC resin/oil on it.

(Part of Count 4 - Agreed fact 13u - Image 30)

Conversations between the Accused and Police:

  1. Car stop 25 May 2017 – Exhibit 2 (Statement of Constable Slater.) The accused admitted to using cannabis but denied that there was anything illegal in the vehicle. Located on a search of the vehicle were all of the items referred to in Count 1 (Paragraph 23) and Count 2 (Paragraph 24) which he admitted were all his property.

After caution he admitted the vacuum sealed bags contained cannabis and that the jars contained honey adulterated with “cannabis extract/oil” which he claimed to consume to treat his PTSD.

As to Agreed fact 3b Image 7 (a re-sealable bag containing 1.1 grams of cannabis leaf in two small round balls) he informed the officer that they were “moonrocks”; being cannabis bud rolled in oil.

As to Agreed fact 3a Images 3 to 5 (3 x vacuum sealed bags of cannabis leaf weighing 66.1 grams – Count 1) he informed the officer that they were “Girl Scout Cookies”, Sour Diesel” and “Blue Venom”.

As to Agreed facts 3c and 3d Images 7 and 8 (writing on the jars of dollar amounts and other figures) he said he did not know what they meant.

He claimed that all that was located in the search was for his own use.

Search of 1 Solander Road, Daceyville, on 3 November 2017 – Exhibit 4A (Search video and transcript. Evidence of Det Sgt Abdullah.)

The accused provided information about the rosin press located in the shed as to percentage product from cannabis leaf and the effects of variable temperatures on quality and flavour of the rosin product.

As to the vacuum oven he said that he had imported it from the USA and used it for a couple of months but not for about three years.

He denied that there was any cash in the premises other than the content of his wallet, or weapons and did not disclose the three vacuum sealed bags of cannabis leaf or any of the vacuum sealed bags of cash later located in the main bedroom and freezer or the shotgun.

ERISP on 3 November 2017 – Exhibit 6 – DVD, 32 photographs shown and Transcript.

The accused portrayed himself as a cannabis connoisseur and guru passionate about cannabis in various strains and forms, as long as they were organic, and an aficionado of various techniques of production and use. He had done “it all for himself” and “mainly” for his PTSD which was the result of an unreported sexual assault on him at 5 years of age.

As to the 32 photographs of items seized during the search he generally acknowledged that they depicted various forms of cannabis leaf/oil/resin or product such as “Moonrocks” and THC infused honey but claimed in respect of some of the leaf in re-sealable plastic bags and vacuum sealed bags that some were “scrap”, “rubbish”, “mouldy” or “old and stale” and hence unusable waste. That he variously intended to throw some of them away or otherwise dispose of them.

As to photo 30 (Agreed fact 13d Image 13) – 3 x approximately 1 lb each vacuum sealed bags of cannabis leaf he said the he had paid $3,500 per bag ($11,500).

As to photos 24 to 28 (Agreed fact 13r Images 27.1 to 27.4) – Five re-sealable bags each containing a single green/khaki ball or “moonrock”, being cannabis bud rolled in cannabis rosin and then rolled in “sift” (fine dust like cannabis material) with writing indicating the various source strains used to manufacture the “moonrock. The note on each bag as to $130 or $100 he said was his way to “work out how much oil was actually on the bud and stuff like that” and that “I just did it for myself for a prestige sort of a thing”.

He claimed that he did not share or sell his product.

As to the $40,000 in four vacuum sealed bags from the main bedroom he said that this was his “life savings” because he did not trust banks and the $7,000 in vacuum sealed bags in the freezer was similarly from his previous work as a concreter specialising in skate park construction.

As to the surveillance of Damien Viso attending his premises he denied supplying him with the two approximately 1 lb bags of cannabis leaf but claimed that Mr Viso had brought them to him to inspect and he had looked at them.

As to the car stop on 25 May 2017 and the items then located in his car (See agreed facts 3a to 3d Images 3 to 9) he admitted that they were differing forms of cannabis including THC adulterated honey and claimed that they were what he had been currently consuming and that they were going to the “Hemp Expo” and that he would consume them.

As to the stainless steel saucepans containing THC (Agreed fact 13y Images 34 to 34.3) these were the result of failed attempts to make a “topical” by combining coconut oil, beeswax and THC.

While fully aware that his conduct was contrary to law he did not believe the law was “right” and referred to a quote generally attributed to Thomas Jefferson:

"If a law is unjust, a man is not only right to disobey it; he is obligated to do so."

Further Relevant Material

  1. Intercepted call: Product No. 2911: 10:44 am on 16 August 2017 – The accused rang the Department of Human Services Child Support Inquiry Line and spoke to Kaylene. In a lengthy aggressive, belligerent and obdurate fashion the accused complained about the assessment of his child support payments providing inconsistent accounts of his income and work history.

“… I haven’t really been working much for the last five years. I’ve had blood clots. I nearly died.” (P 3 of 45)

“Q. So you’re self-employed?

No, not at the moment, not doing anything. … Just a bit of cash in here and there and that way I meet my obligations and I don’t have to go on the dole.” (P 11 of 45)

“A little bit – yeah, and it’s not even worth declaring. It’s seven years of just a little bit here and there” (P 13 of 45)

“I’ve probably earning at the most, at the most two or three hundred bucks a week, at the most.” (P15 of 45)

“I’ve been doing one day a week. I get paid three hundred.” (P 17 of 45

“But I haven’t been earning any money … I haven’t been on the books with anyone …” (P 21 of 45)

“Previous income; the last time I made any money was in two thousand and ten, two thousand eleven.” (P 27 of 45)

“I haven’t made any money in five years and you’re basing it on like six years ago.” (P 29 of 45)

“I’m not even frigging working. This is the most frustrating thing ever. I’m not even working.” (P 42 of 45)

Video recovered from the Accused’s Mobile Phone - Two video files were recovered from the accused’s mobile phone. They record the accused and an unidentified male using the accused’s smoking apparatus in the laundry at 1 Solander Road, Daceyville, consuming cannabis oil.

The Defence Case

  1. The accused gave evidence and called evidence from Damien Viso and Barbara Pierce, de facto partner of more than 12 years and mother of his two children and lessee of 1 Solander Road, Daceyville, and several exhibits were tendered.

  2. The exhibits were:

Exhibit T1 - Audio and transcript of a call on 7 August 2017 at 5:12pm

Exhibit T2 – St George Bank statements from 16 July 2011 to 16 May 2016. (Nil activity except service fees from 15 November 2015 to 16 May 2016)

Exhibit T3 – Reservation Details: Travelodge Blacktown for 12 to 15 November 2017 in total of $650.

  1. In his evidence in chief the accused was taken to the various items located in his car on 25 May 2017 and at his premises on 3 November 2017 and provided the following explanations:

  • All of the money located in the bedroom and freezer in vacuum sealed bags was savings from his work as a concreter and $10,000 was from an inheritance from a German grandmother. He did not trust banks and accumulated money into $10,000 lots which he vacuum packed and kept in the freezer before eventually transferring them to the blanket box in the bedroom. Most of the time he was paid cash in hand from 2012.

  • Exhibit T1 demonstrated that he had a bank account with St George and used it until about May 2016. A number of payments before then appear to relate to his work as a concreter in the construction industry. Once paid he rapidly drew down on the credit funds by cash withdrawals and payments. No invoices or other documents, such as tax returns, were produced to provide independent evidence of the accused’s employment at any time.

  • He and a friend, Brian Risby, with whom he had imported the hundreds of vapour pens. He believed that the consumption of cannabis would be legalized but the pens lacked a necessary cartridge in which the oil would be contained for vaporisation.

  • He recalled Damien Viso visiting his premises on 1 November 2017 to say hello and he thought “dab” and that he had a bag with him but did not know what was in the bag. (T 45/46) He had inspected Mr Viso’s cannabis leaf and opened it because Mr Viso was concerned that it might have been adversely affected by paclobutrazol, a PGR (Plant growth regulator) and concluded that it was “rubbish”. (T 50/51)

  • On 25 May 2017 when stopped he was on his way to get shirts at Kingsford before going to the Hemp and Health Innovation Expo at Rosehill. The Expo was to be held on the weekend commencing 27 May 2017. He was intending to socialise and “… when a few of us get together, we put our – our – our – our own on the table, and it’s like a free for all. Like a picnic, buffet.” He accepted that he intended to share the THC adulterated honey with others. (T 47) The money amounts written on the containers were to discourage others from overindulging. The cannabis leaf and Moonrocks were for his own use in case he wanted different flavours.

  • As to the cannabis leaf at his premises on 3 November 2017 he said in respect of a question as to whether he intended to sell any of it “Not Really, no. I’d pretty much backed off.” (T 50)

  • As to THC honey and cannabis oil at his premises he said he did not intend to supply them to anyone and that they were for his personal consumption before he went to the USA in February 2018.

  • As to photo 30 (Agreed fact 13d Image 13) – 3 x approximately 1 lb each vacuum sealed bags of cannabis leaf which he said had cost him $3,500 per bag and a further similar vacuum sealed bag in the filing cabinet (Agreed fact 13f Image 15), representing a total purchase price of $13,000, he said that they were “Amnesia” and he was going “to start press it and stuff like that” and personally consume the product by “dabbing and eating” (T 52/53) The bags had been delivered the night before the search. (T 53) In cross-examination he said that he had paid $4,000 for each of the three 1 lb bags. ( Total $12,000 for 3 and $16,000 for 4 – T 85)

  • As to his asserted lack of any significant income for years to Kaylene from Child Support he said that he was lying to her. (T 93)

  • He accepted that he was supplying cannabis leaf and THC honey leading up to November 2017 and that he obtained jars of honey from “Super Red Organic” and supplied the proprietor, Mary, and Damo, who worked there, with his THC honey product which they distributed, whether for payment or not. Damo paid $100 for a 50 mil jar containing approximately 2% THC. (T 93 to 95)

  • He gave evidence that intercepted call Product No. 467 on 9 August 2017 was a request for strong THC honey and admitted that he supplied it although he claimed he did so without payment.

  • As to intercepted call Product No. 2684 on 15 August 2017 he accepted that the references to “Big Buddha Cheese”, “THC Bomb” and “Super Skunk” were references to different strains of cannabis and that at that time he was supplying cannabis leaf. But as to all of the leaf oil and resin that was found at his house on 3 November 2017 he was “… just keeping it.” (T 56) “El Diablo” was “not really a direct indication of potency or anything like that. It’s just a joke.” He never explained the joke.

  • Product No. 22749 on 27 September 2017 was a call with a female to whom he admitted suppling one ounce of cannabis leaf. (T 58)

  • As to “moonrocks” at his premises he intended to consume them himself, but accepted that intercepted call Product No. 29098 on 5 October 2017 was an enquiry for “moonrocks” to which he had said “yeah” but the person calling had not come around. (T 59)

  • As to “moonrocks” (Agreed fact 13r Images 27.1 to 27.4) he had written amounts of money ($130 or $100) to note how much it had cost him to make them.

  • He had the yellow envelopes with a skateboarder logo made in Australia with the intention of taking them to the USA. (Agreed facts 13t and u.)

  • The stainless steel saucepans contained his failed efforts to make a topical skin cream combining coconut oil, beeswax and shea butter which he had given up because he “wasn’t kicking any goals with it” and “I was looking to dispose of it responsibly”. (T 66/67)

  • As to the cannabis sativa seedling plants he said he had been talking to a friend at the pub who had some clones with him and he then obtained them out the back and that “I do want to grow them” (T 68/69)

  • He had bought the cannabis plants the day before the search because his friend just happened to have them with him at the pub. When asked:

Q. You intended to cultivate them?

A. No. I just grabbed them impulsively like I said to the police. I did it like two or three times. I love cannabis, so – and I did grab them, and they just sat there

Q. Was your intention to put them in pots and water them?

A. No, sir. They always die.

Q. Why did you buy them?

A. I know it’s – a good question. (T98)

He also said that when he first obtained them they were in a box but when he returned home he had put them in his Esky. (T 98)

  • The shotgun he had found lying on the ground while walking his dog at La Perouse and kept under the bed for 12 years.

Witnesses Called in the Defence Case

  1. Damien VISO – His evidence was that he did not obtain the 2 x vacuum sealed bags of cannabis leaf in his possession on 1 November 2017 from the accused and had never purchased any cannabis from the accused but had attended to consult the accused about whether or not what he had purchased elsewhere was affected by PGR even though he did not know what the acronym stood for, just that it is a poison. He was unable to provide any detail as to how the accused conducted his assessment and whether or not that included physical interference with it. He asserted that he was not a supplier because he had been convicted at trial on the basis of being in possession of more than the deemed quantity.

  2. Barbara PIERCE – She had been the accused’s partner on and off for 18 years. He was the father of their two children and they had lived at 1 Solander road for 11 or 12 years and there were periods of time when he would be residing there and periods when he was not. He was a concreter and from 2009 to 2017 regularly engaged in that occupation although the only job she referred to was one skate park in Hong Kong. She confirmed that he liked to keep his cash in the refrigerator as he did not trust banks and that he had received a $10,000 cash inheritance from his grandmother in Germany some “at least 7 or 8 years ago”. She had never seen the $40,000 in the bedroom. She was not aware of him selling cannabis products but was aware that he made THC adulterated honey which he gave to cancer patients. In November 2017 she was not aware of any cannabis leaf being in the home. Although she thought that an amount of her money that she had put aside for a function concerning her daughter may have been seized during the search she accepted that it may have been left in a plastic bag labelled “Accommodation” and not seized. She was also aware that the accused was a cannabis user who regularly infused honey with THC and was aware of the press in the shed and that he supplied that product to the health food store and at least one other person.

Fundamental Principles

  1. What I will do now is state some fundamental principles that I have applied. They are matters I would have directed a jury about, had there been one.

I have decided the case according to the evidence presented in court

  1. The first principle is that I will determine all relevant issues of fact according to the evidence that has been placed before me.

  2. Each of the counts in the indictment must be considered separately even though almost all of the evidence is common.

  3. The accused is entitled to expect that in considering the issues in the trial I will do so impartially and with a mind free from prejudgement, bias or prejudice. The evidence discloses that the accused was a user of prohibited drugs on a daily basis as well as a manufacturer of particular types of prohibited drug over a period of years. In addition he admitted to supplying or agreeing to supply prohibited drugs in a period prior to approximately two weeks before the search at 1 Solander Road, Daceyville, on 3 November 2017 Those matters are relevant to the circumstances in which the prohibited drugs the subject of the charges were located and to the matters raised in the defence case. However, I must consider the evidence dispassionately without bias or prejudice and free of any tendency or like reasoning.

  4. The issue in this trial has been confined. It is not whether the accused was in possession of the prohibited drugs but whether they were in his possession for the purpose of supply.

The onus and standard of proof

  1. The most important and fundamental principle of law that I will apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly upon the Crown. The accused started this trial from the position that he is presumed to be innocent, and that presumption continues until the Crown satisfies me beyond reasonable doubt that he is guilty, if the Crown is able to do that.

  2. There is no obligation on the accused to prove any fact or issue that is in dispute, except as later referred to where possession of a traffickable quantity or more is proved beyond reasonable doubt, and pursuant to s 29 of the Act the possession is deemed to be for the purpose of supply, unless the accused proves on the balance of probabilities that he had the prohibited drug in his possession otherwise than for supply. (Counts 4 and 5)

  3. The fact that the accused has given evidence does not alter the burden of proof.

  4. What the Crown must prove and prove beyond reasonable doubt are the ingredients or essential facts contained in the charges arising from the indictment. I will indicate later the ingredients or essential facts arising from the charges on the indictment.

  5. Mr Tinker has given evidence in answer to the case led by the Crown as already summarized.

  6. If, having considered that evidence, and the submissions of both counsel in relation to it, I accept it, then of course I must acquit the accused and bring in a verdict of “not guilty”, because it would follow that the Crown has not established beyond reasonable doubt its case in relation to an essential matter that it must prove.

  7. However, there is no obligation on the accused to persuade me to accept that evidence. The Crown must satisfy me beyond reasonable doubt that I should reject it as a reasonably possible version of the facts. If that evidence leaves me with a reasonable doubt as to whether the Crown has made out its case in respect of any element of an offence or any essential fact that it must prove, then I am bound, in law, to bring in a verdict of “not guilty” in respect of that charge. In other words, I do not have to believe that the accused is telling me the truth before he is entitled to be acquitted. If at the end of my deliberations I find that there is a reasonable possibility that the version presented by the defence is true then the Crown has failed in its obligation to persuade me of the accused’s guilt beyond reasonable doubt.

Inferences

  1. In my role as judge of the facts, I may draw inferences from the direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect.

  2. In a criminal trial I must be satisfied of guilt beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference and I should not draw an inference unless it is the only rational inference in the circumstances

Circumstantial Evidence

  1. In this case, the Crown relies partly on what is called “circumstantial evidence”. In relying upon circumstantial evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact or facts.

  2. Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.

  3. In order to satisfy me beyond reasonable doubt of Mr Tinker’s guilt of the offence, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that Mr Tinker is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown’s circumstantial case has failed.

Elements of the Offences

  1. There are six offences to which the accused has pleaded that he is not guilty.

  2. Four are allegations of supplying a prohibited drug:

Count 1: On 25 May 2017 supply 67.2 grams of cannabis leaf.

Count 4: Between 24 May and 4 November 2017 supply 8,873.76 grams of THC.

Count 5: Between 24 May and 4 November 2017 supply 2.4 kg of cannabis leaf.

Count 6: Between 24 May and 4 November 2017 supply 14.1 grams of cannabis resin.

One is an allegation of cultivating a prohibited plant:

Count 7: On 3 November 2017 cultivate seven cannabis sativa plants.

One is an allegation of dealing with the proceeds of crime:

Count 10: On 3 November 2017 dealing with the proceeds of crime, $49,830 AUD.

  1. Each drug or plant is a prohibited drug or plant as provided by s 3(1) and Schedule 1 of the Drugs (Misuse and Trafficking) Act. In respect of each of the prohibited drugs the subject of Counts 4 and 5 the quantity is not less than the traffickable quantity as specified in Schedule 1. In respect of Counts 1 and 6 the quantity is less than the traffickable quantity as specified in Schedule 1.

Elements of Supply - Counts 1, 4, 5 and 6

  1. In respect of Counts 1, 4, 5 and 6 the elements are the same with the exception that there is an additional element in respect of Count 4.

  2. The elements that the Crown must prove beyond reasonable doubt in respect of each of the counts are:

  1. that the accused supplied a substance;

  2. that the substance was a prohibited drug: and

  3. that the accused knew that what was supplied was a prohibited drug;

In addition in respect of Count 4:

  1. which was not less than the large commercial quantity.

  1. It is admitted that each of the substances was the relevant prohibited drug referred to in the relevant charge, and that in respect of Counts 4 and 5 that the quantity was not less than the traffickable quantity. In respect of Count 4 it is admitted that the quantity was not less than the large commercial quantity of tetrahydrocannabinol – 2 kg or more.

  2. “Supply”- The second essential matter that the Crown must prove is that the accused supplied that drug. The ordinary meaning of the word “supply” is to give or provide.

  3. In respect of Counts 4 and 5 the law has an extended meaning of the word “supply”. It includes having a prohibited drug in the accused’s possession for the purpose of supply.

  4. There are two aspects to this. I first need to be satisfied that the accused was in possession of the substance. If I am, I then need to consider whether such possession was for the purpose of supply.

  5. “Possession” - The Crown must prove that the accused intentionally had the substance in his physical custody or control to the exclusion of others, except anyone who was acting jointly with him in committing the alleged offence.

  6. In this matter, whatever may or may not be accepted otherwise from his evidence, Mr Tinker has admitted to possession of the prohibited drugs located where he had placed them or left them in the premises he then occupied or in the relevant motor vehicle.

  7. The Crown must also prove that in intentionally having such custody or control of the substances, the accused knew or believed at the time that in respect of the substance, the subject of each charge, that it was a prohibited drug. Mr Tinker has admitted in conversations with police on 25 May 2017 and 3 November 2017 and his evidence at trial that he knew that at the time of his possession of the substance the subject of each charge that it was a prohibited drug. No submission has been made on behalf of Mr Tinker that he did not know that what he had possession of in respect of each charge was a prohibited drug.

  8. “For the purpose of supply” - So much for the first aspect of possession. The second aspect is that the Crown must also prove that the accused had the substance in his possession for the purpose of supply. Here in respect of Counts 4 and 5 a particular rule of law comes into operation. The law says that if an accused person has in possession a specified quantity or more of a prohibited drug, then he or she is regarded as having possession of it for the purpose of supply. In relation to the two prohibited drugs the subject of Counts 4 and 5 I have already referred to the relevant quantities specified by the law. Each is more than the individually relevant traffickable quantity.

  9. If I am satisfied that the Crown has proved beyond reasonable doubt that the accused had in respect of Counts 4 and 5 the traffickable quantity or more of the prohibited drug in his possession, then it is a defence to this charge if the accused proves that he had the relevant drug in his possession otherwise than for the purpose of supply.

  10. “Supply” here has its ordinary meaning, that is, to give or to provide the drug to somebody else, whether by way of sale or otherwise. So, what the accused needs to prove is that he had the drug in his possession for some purpose other than to give it, or provide it, to somebody else.

  11. “Supply” is defined in s 3(1) of the Act as follows:

“Supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.”

  1. The accused’s case as to Count 5 is that he had the drugs in his possession for his personal use only or for disposal because they were “scrap”, “rubbish”, “mouldy” or “old and stale” and hence unusable waste that he intended to dispose of. As to Count 4 that it was the result of a failed attempt to make a “topical” and that he intended to dispose of it as soon as he could determine a responsible way to do so.

  2. While the onus of proving this rests on the accused, the accused does not have to prove it to the more stringent standard of proof beyond reasonable doubt. It is sufficient if he proves this matter on the balance of probabilities. The “balance of probabilities” means more likely than not, or more probable than not. I remind myself that the essential matters that the Crown is required to prove must be proved beyond reasonable doubt. However, if I am satisfied that the Crown has proved those things to that standard, then I come to consider whether the accused has proved that he had the drugs in his possession otherwise than for the purpose of supply, and the standard to which the accused is required to prove this is on the balance of probabilities.

  3. The accused must prove this in relation to the entire quantity of each of the prohibited drugs involved in the relevant charge. It is not enough for the accused to have proved that some of the drug in the relevant charge was in his possession otherwise than for the purpose of supply.

  4. If, having considered the relevant evidence and submissions in relation to the matter, I am of the view that it is more probable than not, or more likely than not, that the accused had all of the substance in the relevant charge being considered in his possession for a purpose other than for supply then I must return a verdict of “not guilty” in respect of that charge. If, on the other hand, I am not so satisfied, then I should find the accused guilty of the offence charged, provided always, of course, that I am satisfied, beyond reasonable doubt, as to the matters which the Crown must prove.

Elements of Cultivation - Count 7

  1. There is only one element that the Crown must prove:

  1. That the accused cultivated a prohibited plant.

  1. “Cultivate” – Cultivate is defined in s 3 of the Act as follows:

Cultivate in relation to a prohibited plant, includes:

  1. sow or scatter the seed produced by the prohibited plant, and

  2. plant, grow, tend, nurture or harvest the prohibited plant.

  1. “Nurture” – is not defined in the act and has its ordinary English meaning:

To take care of, feed and protect someone or something, especially young children or plants and help him, her or it to develop.

(Cambridge Dictionary)

  1. There is no dispute that the seven seedlings were cannabis plants.

  2. The accused’s evidence was that he obtained them from a friend at the rear of a pub when felicitously the friend happened to have them with him when attending the pub. They were in a box and he brought them to his premises because he was interested in growing them but expected them to die because his previous efforts at cultivation had failed. He removed them from the box and put them in the Esky which was located in the kitchen at the time of the search.

  3. The accused regarded himself as a connoisseur and guru in respect of cannabis in various forms and the methods of production and use. Present at his premises were significant quantities of cannabis leaf and other products. A number of the products indicated by writing on them the hybrid or strain of cannabis making or contributing to the product. Intercepted calls similarly referred to product from different strains or hybrids as then available or unavailable.

  4. In the circumstances, it is most likely that the accused obtained the cannabis plants in the belief that they were a particular strain or hybrid of significant potency and intended to grow them himself of pass them on to someone who could grow them for him and supply to him cannabis leaf from that crop.

  5. As to cultivating them himself he had available a grow tent, although as yet unassembled, and bagged potting mix on the veranda at his premises. Such materials would have been sufficient to commence cultivation whatever course and further equipment might be desirable over time.

  6. The professed expectation that his efforts to cultivate might fail is not a defence. The accused’s case as to how he obtained and dealt with the cannabis plants is clear evidence of “nurturing” pending any further conduct of cultivation by him or any other.

Elements of Dealing with Proceeds of Crime – Count 10

  1. There are three elements that the Crown must prove:

  1. the accused dealt;

  2. with proceeds of crime; and

  3. was reckless as to whether it was proceeds of crime.

  1. “Deal with”, “proceeds of crime” and “serious offence” – are defined in s 93A of the Crimes Act 1900:

Deal with includes: (as far as is relevant) receive, possess, conceal or dispose of.

Proceeds of crime means: (as far as is relevant) any property that is substantially derived or realized, directly or indirectly, by any person from the commission of a serious offence.

Serious offence means: (as far as is relevant) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment.

  1. “Recklessness” – is defined in s 4A of the Crimes Act 1900:

For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge.

  1. There is no dispute in this matter that the accused possessed four vacuum sealed plastic bags each containing $10,000 AUD located in the bedroom and two vacuum sealed bags, one containing $6,000 AUD in $50 notes and one containing $1,000 AUD in $100 notes, in the freezer and $1,130 AUD in his wallet. (Agreed facts 13p, 13q and 13r Images 25, 26 and 27.1 to 27.4)

  2. The defence case is that the accused worked regularly as a concreter specialising in the construction of skate parks and that, as he did not trust banks, kept his money in cash in vacuum sealed bags in the freezer and when they amounted to $10,000 in the bedroom.

  1. The accused produced no documentation such as invoices, receipts, pay slips, quotes or tax records which might evidence such engagement. The intercepted call, Product No. 2911, between the accused and Kaylene from the Department of Human Services Child Support Line included many claims by the accused as referred to in Paragraph 27 that he had not had any substantial, if any, income since 2010/2011. It is evident from the conversation that Kaylene had access to the tax returns for the purpose of the assessment of Child Support but that there were none from about 2010/2011.

  2. No witness was called in the defence case to give evidence of such employment at any relevant time. Ms Pierce only gave evidence that she believed he worked as a concreter and that he worked on a skate park in Hong Kong on one occasion and received a $10,000 inheritance seven or eight years ago.

  3. The last possible payment into his St George Bank account that appears to relate to concreting or construction is a payment to him on 16 October 2015 of $1,966.25 from Convic Pty Ltd. His last active use of the account was on 3 November 2015. Thereafter only bank account service fees are recorded.

Factual determinations

Credibility of the Accused

  1. The accused’s evidence lacks any significant credibility for the following reasons:

  • Car stop on 25 May 2017 – He initially denied that there was anything illegal in the car. When the items referred to at Paragraphs 23 and 24 were located his ego as a self-perceived cannabis connoisseur and guru took over and he made relevant admissions as to the nature of what was then located, in my view, not simply as admissions of the relatively obvious but to demonstrate his knowledge and expertise. However, he lied when he said he did not know why some of the items had money amounts and other figures written on them and about them being all for his own use to avoid the inevitable inference that they were for sale.

  • Search of 1 Solander Road on 3 November 2017 – While he had no problem talking to police about the vacuum oven, rosin press and production methods and items discovered in his presence he lied in denying that there was any cash at the premises other than what was in his wallet or any weapons. He hoped that the search that continued in his absence would not locate the various vacuum sealed bags of cash in the bedroom and freezer, the cannabis leaf in the bedroom or the shotgun under the bed.

  • ERISP 3 November 2017 and Evidence at Trial – When interviewed he lied by endeavouring to reduce the quantity of prohibited substances by claiming many were “scrap”, “rubbish” “mouldy” or “old and stale” and hence were unusable waste that he intended to dispose of. Of relevance to the credibility of this claim is that several of the items with “mold” [sic] written on them (ERISP P 48/49 Photos 10 and 11) were in fact in vacuum sealed bags stored in a locked filing cabinet which is inconsistent with unusable waste to be disposed of. One vacuum bag was labelled “high grade scrap” which is also not consistent with being “rubbish” as claimed in the ERISP. (ERISP P 37/38 Photo 2)

In the ERISP he said that he had paid $3,500 for each of the three vacuum sealed bags of cannabis leaf located in the bedroom which at trial became $4,000 each.

He lied by saying that he did not sell or share his product. Demonstrated to be false by his evidence at trial and the content of the intercepted calls where the caller offered to pay more for stronger quality and visit an ATM for that purpose. (Exhibit 3 Product No. 467) He also gave evidence at trial in respect of the adulterated honey located in his vehicle on 25 May 2017 that he intended to share it with likeminded users at the Hemp Expo which did not commence until 27 May 2017 but continued to lie by saying that the “moonrocks” and three strains of cannabis leaf (67.2 grams) was for his own use in case he wanted different flavours. He was two days early for the Expo at which the presence of any prohibited drug was likely to cause significant problems for the organizers. No matter how heavy a user he was, 67.2 grams of cannabis leaf is far in excess of what he might consume on a one day trip from home or even a three or four day tip, particularly when considering that in addition he had a total of 502.33 grams of THC adulterated honey. Whether or not his story of intending to share the THC honey with others was true there is no reason why if it was true he would not also have shared his three different strains of cannabis leaf (“Girl Scout Cookies”, “Sour Diesel” and “Blue Venom”) or “moonrocks”.

  • At trial he gave evidence that he was supplying cannabis leaf and THC honey up to November 2017 and distributing the THC honey through “Super Red Organic” with at least Damo paying him $100 for a 50 mil jar. (T 93 to 95)

He admitted that he supplied 1 ounce of cannabis leaf to the female referred to in Product No. 2684 on 27 September 2017. (T 58) He agreed to supply “moonrocks” to the caller in Product No. 29098 on 5 October 2017.

His evidence of writing amounts of money ($130 or $100) on 5 separate bags of “moonrocks” to know how much it had cost him to make them is incapable of belief as is his inability to clearly acknowledge in respect of the 7 cannabis sativa plants that he obtained them to cultivate or supply to another for that purpose. (T 98)

  • His evidence was that he intended to press the vacuum sealed three 1 lb bags of cannabis leaf in the bedroom and the similar 1lb bag in the filing cabinet and use personally the product in the period between 3 November 2017 and travelling to the USA in February 2018 is similarly incapable of belief. This would have involved him using in that relatively short period of time, depending on any truthful evidence of cost, cannabis leaf to the value of $14,000 at $3,500 per pound or $16,000 at $4,000 per pound in circumstances where his premises already had significant quantities of other product in various forms present.

  • In respect of Count 4 (Supply 8,873.76 grams of THC) and Count 5 (Supply 2.4 kg cannabis leaf) s 29(a) of the Act applies.

  • In respect of Count 4 the accused’s evidence was that the content of the two stainless steel pots was an admixture of THC, coconut oil, beeswax and/or shea butter, being a failed attempt to create a “topical”, he gave no evidence as to any condition this would or might be used to treat. A “topical” containing THC is no more legal than cannabis leaf, oil or resin. Section 4 of the Act provides that a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug. It is accepted that the pots contained an admixture of THC and other substances to which s 4 and s 29(a) of the Act applies. Accordingly the accused is deemed by the legislation to have all of the 8,873.76 grams in his possession for the purpose of supply unless the accused proves on the balance of probability that he had it in his possession for some purpose other than supply, that is, to give it, or provide it, to somebody else. The accused’s case in this respect is that he could not be found to be intending to supply it because he had failed in his attempt at manufacturing a “topical” and accordingly he did not intend to supply it as the content of the pots wold be disposed of by him as waste. While there is no evidence as to any further steps that might be taken to manufacture a “topical”, such as applying heat to turn it back into a liquid, or any additional substance that might be added. In the circumstances of this matter and the accused’s lack of credibility I am unable to accept that he has discharged the statutory presumption and onus placed on him of proving on the balance of probability that he did not have the 8,873.76 grams for supply.

  • As to Count 5 to which s 29(a) also applies I simply note my previous comments above and that I find that the accused has again failed to overcome the statutory provision that the 2.4 kg of cannabis leaf was in his possession for supply.

  • As to Count 10 relating to dealing with proceeds of crime, $49,830 AUD, being reckless as to whether it was the proceeds of crime I take into account the amount, the manner in which it was stored, the accused’s lack of objective evidence of any substantial income at any relevant time and the fact that his evidence indicates that he has been engaged in the use and manufacturing of prohibited drugs for years, as well as supplying them to others whether for known payment or not. In addition are the general circumstances referred to in Paragraph 25. “Recklessness” as allowed by s 4A of the Crimes Act can be established by proof of knowledge and I find beyond reasonable doubt that the accused knew that the $49,830 AUD in cash located in his premises on 3 November 2017 was the proceeds of his own serious criminal offences.

Credibility of the Accused’s Witnesses

  1. Mr Damien VISO, however he may have obtained it, was in possession of 2 x 1lb bags of cannabis leaf in vacuum sealed plastic bags on 1 November 2017. He is recorded as asserting during the video recorded search of his vehicle that he bought in bulk to save money and only for his personal use and that two lbs would last him 6 or 7 months. His evidence was also that he was not a supplier because he had been convicted of supply only because of the amount being more than the traffickable quantity and therefor deemed to be for supply.

His evidence otherwise was simply an attempt to counter the strong inference that he had obtained the cannabis leaf from the accused. His evidence does not otherwise assist the accused in defending any of the charges and the accused is not charged with supplying the two vacuum sealed packages of cannabis leaf to Mr Viso.

  1. Ms Barbara PIERCE has been in a relationship with the accused for 18 years and is the mother of their two children. She was aware that the accused used prohibited drugs and manufactured rosin which he also supplied in adulterated honey. The premises including the shed were rented in her name and resided in by her, the accused and their children and were littered with prohibited drugs and equipment for the use and manufacture thereof as well as significant sums of cash in the freezer, even if she was not aware of the $40,000 in the bedroom. Her evidence, even if believed, was of little assistance to the accused’s case. In view of their relationship and her knowledge of his activities little weight can be given to her evidence even where it might support the accused. As to his activities as a concreter there was little of any real support. She, like the accused must have taken the view that there was little if anything wrong with his flagrant breeches of the law on a continuing basis.

Conclusion as to the Evidence of the Accused

  1. In short, I find that the accused was prepared to lie to avoid a conviction or lessen his moral culpability for his conduct whenever he believed the authorities had no evidence to the contrary and to only make concessional admissions when he realised that the lies could not be maintained. I find that I am unable to accept the accused as truthful, except as to the production methods he used.

  2. I do accept that he was a user of each of the prohibited drugs that he was found in possession of on 25 May and 3 November 2017.

  3. I make the following findings of fact beyond reasonable doubt:

  • That on 25 May 2017 at Kingsford the accused was knowingly in possession of 66.7 grams of cannabis leaf for the purpose of supply, accepting that he may have intended to use some of that quantity personally.

  • That on between 24 May 2017 and 4 November 2017 at Daceyville the accused was knowingly in possession of 8,873.76 grams of tetrahydrocannabinol, being not less than a large commercial quantity for the purpose of supply.

  • That between 24 May 2017 and 4 November 2017 at Daceyville the accused was knowingly in possession of 2.4 kg grams of cannabis leaf for the purpose of supply, accepting that he may have intended to use some of that quantity personally.

  • That between 24 May 2017 and 4 November 2017 at Daceyville the accused was knowingly in possession of 14.1 grams of cannabis resin for the purpose of supply, accepting that he may have intended to use some of that quantity personally.

  • That on 3 November 2017 at Daceyville the accused cultivated 7 cannabis sativa plants.

  • That on 3 November 2017 at Daceyville the accused dealt with the proceeds of crime, namely $49,830 AUD being reckless as to whether it was the proceeds of crime.

Verdicts

  1. Mr Tinker, please stand,

In respect of each of Counts 1, 4, 5, 6, 7 and 10 on the indictment:

You are found guilty.

In respect of each offence you are convicted.

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Decision last updated: 30 November 2020

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