The State of Western Australia v Adams
[2018] WADC 105
•28 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- ADAMS [2018] WADC 105
CORAM: PRIOR DCJ
HEARD: 16 - 20 APRIL 2018
DELIVERED : 28 AUGUST 2018
FILE NO/S: IND 1426 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
JODIE LEE ADAMS
Catchwords:
Sentencing - Trial of issues - Offering to sell or supply methylamphetamine - Amount of methylamphetamine offered - Possession of methylamphetamine with intent to sell or supply to another - Amount of methylamphetamine possessed by the offender - Amount intended to sell or supply to another - Prosecution required to prove aggravating factors beyond reasonable doubt and offender required to prove mitigating factor on the balance of probabilities
Legislation:
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA), s 15
Evidence Act 1906 (WA), s 11
Result:
Prosecution failed to discharge the onus of proof of the amount of methylamphetamine the offender had in her possession
Offender discharged the onus of proof that she only intended to sell or supply half of the methylamphetamine she admitted was in her possession
Prosecution discharged the onus of proof in relation to the amount of methylamphetamine the offender offered to sell or supply to another
Representation:
Counsel:
| Applicant | : | Ms S V Purvis |
| Accused | : | Mr S M Brennan |
Solicitors:
| Applicant | : | State Director of Public Prosecutions |
| Accused | : | Brennan & Co |
Case(s) referred to in decision(s):
Law v State Of Western Australia [2009] WASCA 193
R v Lobban [2001] SASC 392; (2001) 80 SASR 550
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
PRIOR DCJ:
Introduction
On 16 April 2018 Jodie Lee Adams entered pleas of guilty to 9 counts on an indictment containing 10 counts dated 28 November 2017. The remaining count on the indictment (count 9) was discontinued.
Counts 1 ‑ 8 were offences of offering to sell or supply a prohibited drug, namely methylamphetamine to another, an offence pursuant to s 6(1)(c) of the Misuse of Drugs Act 1981 (MDA). Count 10 was a charge of possession of a prohibited drug, namely methylamphetamine with intent to sell or supply to another, an offence pursuant to s 6(1)(a) of the MDA.
The matter than proceeded to a trial of the issues as there was a dispute with respect to the facts to be found for sentencing in relation to count 6 and count 10 on the indictment.
The factual matters in dispute
Count 6
The dispute in relation to count 6 on the indictment relates to an offence that on 4 December 2015 at an unknown place in the Perth metropolitan area Jodie Lee Adams offered to sell or supply a prohibited drug, namely methylamphetamine to another.
This offence arises out of a telecommunications warrant obtained by Midland Detectives to intercept mobile telephone number 0476 611 397. This telephone number was registered in the name of John Varischetti. Mr Varischetti is Ms Adams' partner. Ms Adams does not dispute she was using this mobile telephone number. She admits she is the person communicating with the various people in the telephone communications. The relevant telephone communications were made by Ms Adams on 4 December 2015.
The factual dispute in relation to this offence is whether Ms Adams offered to sell or supply to Colin Butera an ounce (28 g) of methylamphetamine or a much lesser amount of methylamphetamine 3.5 g. Ms Adams does not dispute that in the relevant telephone calls and text messages she was communicating with Colin Butera.
The relevant telephone communications between Ms Adams and Colin Butera on the intercepted mobile telephone number the subject of count 6 are the following:
(i)At 4.41 pm on 4 December 2015, Mr Butera rings Ms Adams and asks 'can you get me a price on a big K?' Ms Adams replies 'Yeah can talk to you when I see him'. Mr Butera then says 'No, because I'm sort of trying to organise it with him, yeah, do you know what I mean?' Ms Adams replies 'Um, um hang on, About to, give me two, I'll call you back'.
(ii)At 4.49 pm on 4 December 2015, Mr Butera sends a text message to Ms Adams 'My mates BBQ needs a kilo of snags I can organise all the paperwork first just need the figure that way there is no risk'.
(iii)At 5.02 pm Ms Adams replies 'OK'.
(iv)At 9.55 pm Ms Adams rings Mr Butera and states 'Rain on your barbeque packs ranging from 1650 through to 20. I've got five different options. And that's the variance, and that's what, that's what it's going to cost me. I haven't put any set on that at that point'.
Mr Butera then asks 'So its going to start at 20 then?'
Ms Adams replies 'Well, just, yeah, just yeah. Just work out where he wants to, where you want to, you want to spend and we'll go from there. But yeah, and it's no problem, so um four of them are here'.
The State's case is the reference to a 'big K' and 'a kilo of snags' by Mr Butera is a reference to an ounce (28 g) of methylamphetamine. The State's case is the reference to 'barbeque packs' by Ms Adams is a reference to an ounce or 28 g of methylamphetamine and ranging from '1650 through to 20' is a price range of $16,500 to $20,000 consistent with the price for an ounce of methylamphetamine.
The State's case is that you can infer these various telephone communications are Ms Adams offering to sell or supply Mr Butera with an ounce (28 g) of methylamphetamine after he has made the initial inquiry with her about the price on a 'big K'. The State's case is the telephone communications Ms Adams makes with Michael Finlay around this time by text messages or telephone calls are Ms Adams sourcing this amount of methylamphetamine from Mr Finlay for her to sell or supply to Mr Butera.
Count 10
In relation to count 10 on the indictment, the factual dispute arises as police officers who carried out a search of 159 Haddrill Road, Baskerville (the house) on 22 December 2015 located a total amount of 53.92 g of methylamphetamine. This methylamphetamine was located in a black camera case inside a cabinet on the back patio area outside the back of the house and in two plastic bags on the dining table in the dining room inside the house. The State's case is Ms Adams possessed this total amount of methylamphetamine (53.92 g) with intent to sell or supply it to another.
It is not in dispute that Ms Adams was living at 159 Haddrill Road, Baskerville. Ms Adams was present at the house when police officers conducted the search on 22 December 2015.
Ms Adams does not dispute that 53.92 g of methylamphetamine was found by police officers at 159 Haddrill Road, Baskerville on 22 December 2015. She does not dispute where the police officers say the various amounts of methylamphetamine were found both inside and outside the house.
Ms Adams disputes that she possessed any of the methylamphetamine located in the black camera case found by police officers in a cabinet on the back patio at the house. The total amount of methylamphetamine inside the black camera case in the cabinet was 46.87 g. This methylamphetamine was contained in four clip seal bags in four different amounts. Ms Adams' position is she had no knowledge of any of the methylamphetamine found by the police officers in the black camera case.
Ms Adams only admits that she possessed the methylamphetamine which was found by police officers inside the house on the dining room table being two clip seal plastic bags containing 3.49 g and 3.56 g of methylamphetamine. She admits that she did have an intent to sell or supply some of that methylamphetamine, being one of the two bags on the dining room table, to another person and she claims the other bag of methylamphetamine she would use herself. Ms Adams therefore disputes she intended to sell or supply the whole amount of methylamphetamine found by police officers on the dining room table.
Other small amounts of methylamphetamine in plastic bags were found by police officers in a buffet cabinet in the dining room, in Ms Adams bedroom and in a pot plant outside the house. These amounts of methylamphetamine are not the subject of count 10. In relation to the small amounts of methylamphetamine found in the house Ms Adams admits it was her methylamphetamine.
Legal principles for a trial of the issues
In Law v State Of Western Australia[2009] WASCA 193 Buss JA at [25] – [34] summarised the relevant legal principles that apply in relation to how a sentencing judge should deal with a matter when there was a dispute on the factual basis on which an offender should be sentenced. Those principles as they relate to the factual circumstances in dispute in this matter for sentencing can be summarised as follows:
1.If the prosecution seeks to have the sentencing judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring the matter to the judge's attention and, if necessary, call evidence about it: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [25].
2.If the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance it will be, for the offender to bring that matter to the judge's attention and if necessary call evidence about it: see R v Olbrich [25].
3.It will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstance, as the case may be, if the asserted matter is controverted by the other party or if the sentencing judge is not prepared to act on the assertion, even though it is not controverted by the other party: see R v Olbrich [25].
4.The prosecution must establish an aggravating circumstance beyond reasonable doubt, but the offender is only required to prove any mitigating circumstances on the balance of probabilities: see R v Olbrich [27]; R v Storey [1998] 1 VR 359, 369.
5.If the sentencing judge is not persuaded of the existence of a particular fact: whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. When the sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing: see R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32] (Martin J, Mulligan & Belby JJ agreeing).
In relation to the factual dispute relating to count 6, the prosecution alleges that Ms Adams offered to sell or supply a greater amount of methylamphetamine, an ounce (28 g), than what the offender Ms Adams was prepared to admit, approximately 3.5 g (an eight ball).
If I was to sentence Ms Adams on the basis that she offered to sell or supply 28 g, this would be an aggravating circumstance and is likely to result in a more severe sentence being imposed on Ms Adams. In those circumstances relating to this factual issue in dispute, it is for the prosecution to prove the fact that Ms Adams offered to sell or supply 28 g and to prove it beyond reasonable doubt.
In relation to the factual dispute relating to count 10, the prosecution alleges that Ms Adams possessed the total amount of 53.92 g of methylamphetamine with intent to sell or supply to another as opposed to Ms Adams who admits she possessed only 7.05 g of methylamphetamine with intent to sell or supply to another.
If I was to find as a matter of fact that Ms Adams possessed 53.92 g of methylamphetamine with intent to sell or supply to another this would be an aggravating circumstance and is likely to result in a more severe sentence for Ms Adams. In those circumstances it is for the prosecution to prove the fact and prove it beyond reasonable doubt that Ms Adams possessed 53.92 g of methylamphetamine with intent to sell or supply to another.
If I am not satisfied beyond reasonable doubt that Ms Adams possessed 53.92 g of methylamphetamine with intent to sell or supply to another, an additional factual dispute arises in that Ms Adams' position is that she only intended to sell or supply one of the two clip seal bags which together comprised 7.05 g of methylamphetamine found by police officers on the dining room table in the house on 22 December 2015.
In relation to this factual dispute, as it is the defence position that as Ms Adams only intended to sell or supply approximately half the methylamphetamine on the dining room table to another this is a mitigating factor. It would likely result in a less severe sentence for Ms Adams if I was to find that she only intended to sell or supply half of the methylamphetamine found on the dining room table and the other half was for her own personal use.
In those circumstances it is for Ms Adams to prove on the balance of probabilities that approximately half of the methylamphetamine of the total amount of 7.05 g found on the dining room table was for her own personal use.
Prosecution case
At the trial of the issues the prosecution called the following three witnesses in support of its case:
1.Detective First Class Constable Andrew Smith;
2.Detective Senior Constable Sonia Wilson; and
3.A chemist Rohan Edmunds.
A statement from Detective First Constable Lee Evans was read into evidence. His evidence related generally to his understanding of the illicit drug industry in Western Australia, in particular the drug methylamphetamine, the weights that methylamphetamine is sold in and the price of methylamphetamine from October to December 2015. Detective Evans said the quarterly price index indicates the approximate value of methylamphetamine as $8,000 per ounce and $1,200 to $1,500 per 'ball' (1.75 g).
Part of a statement from Police Constable Kiryn Waldeck was read into evidence. Her evidence related to her finding on 22 December 2015 at 159 Haddrill Road, Baskerville a small black pencil case containing electronic scales, multiple clip seal bags and a small plastic tub containing traces of a crystal substance. She also found a grey clear hard plastic camera case containing multiple clip seal bags containing a white crystal substance. Both items were found by Constable Waldeck inside the top cupboard of a wooden bench situated outside the house, next to the laundry sliding door. Ms Adams disputes she possessed the 46.87 g of methylamphetamine which was in this camera case. For ease of reference I will refer to the item which contained this methylamphetamine as the 'the black camera case' as other witnesses have described the item this way.
In addition to the evidence of the five witnesses, the prosecution tendered the following materials:
1.The prosecution brief which comprises 497 pages.
2.A DVD of the search of 159 Haddrill Road, Baskerville by police officers on 22 December 2015.
3.The record of interview of Ms Adams with police officer on the 21 January 2016.
4.A DVD of the search of 159 Haddrill Road, Baskerville by police officers on 21 January 2016.
5.An Excel spreadsheet of mobile telephone intercept calls and text messages in relation to warrant H15275‑00 where Ms Adams is one of the communicating parties, with transcripts of the mobile telephone calls.
6.An Excel spreadsheet for warrant H15232‑00 of mobile telephone calls and text messages where Ms Adams is one of the communicating parties, with transcripts of the mobile telephone calls.
7.A CD of various intercepted mobile telephone calls between Ms Adams and various persons including Brent Davies and Ms Adams' partner John Varischetti.
8.Ten photographs of what is submitted by the prosecution are 'tick lists' and examples of writing. These items, the subject of the photographs, were found by the police in the search, inside the house on 22 December 2015.
9.A DVD of a police search of 23 Orchard Street, Upper Swan on 10 December 2015 where a person by the name of Brent Graeme Davies was an occupant of the premises. Only the beginning and end part of that search DVD was relied upon and shown to the court at the trial of the issues.
10.A spreadsheet indicating where various items were found by police officers at the house on 22 December 2015.
11.Seven certificates of analysis relating to seven amounts of methylamphetamine found by police at the house, on 22 December 2015.
12.The report of chemist Rohan Edmunds dated 31 March 2016.
An amended statement of material facts dated 18 October 2017 was read by the Prosecutor Ms Purvis at the beginning of the trial of the issues.
Police evidence
The evidence of Detective Smith and Detective Wilson is primarily contained on the various DVDs of the police searches of the house, and a property at 23 Orchard Street, Upper Swan, the interview of Ms Adams on 21 January 2016 and the intercepted mobile telephone calls or text messages involving Ms Adams.
In relation to all methylamphetamine found by police officers on 22 December 2015 in various plastic bags at the house, there is no forensic evidence by way of DNA profile matches or fingerprint matches to Ms Adams. There is no forensic evidence of any type tendered as part of the State's case against Ms Adams linking her to the four clip seal bags containing methylamphetamine found in the black camera case in the cabinet on the back patio at the house.
I note that during the search carried out by the police of the house on 22 December 2015 that when the various amounts of methylamphetamine were found both in Ms Adams' bedroom and the dining area by police, Ms Adams admitted that she owned them.
This contrasts to when the methylamphetamine was found by police in the black camera case on the cabinet in the back patio area of the house. When police officers questioned Ms Adams about that methylamphetamine she denied any knowledge of it. This denial with respect to her knowledge of this amount of methylamphetamine found the police officers in the search of the house was maintained by Ms Adams in her record of interview with police officers at Midland Police Station on 21 January 2016.
It was part of the prosecution case in the trial of the issues that on 22 December 2015, the house was heavily secured. Detective Smith gave evidence at the trial of the issues that the police had some considerable difficulty in gaining entry through the front door to the premises.
When spoken to by police during the search of the house, Ms Adams advised that the house had been subject to a break‑in in 2015 before the police attendance on the premises on 22 December 2015. Ms Adams gave evidence that both she and Mr Varischetti were at the house when the break‑in occurred. Ms Adams stated that her wallet, $300 to $400 cash, two iPads, two mobile telephones, jewels, and tools were stolen during the break‑in. She said no methylamphetamine was taken.
In her evidence Ms Adams stated that the front door frame of the house, had been reinforced by her partner after the break‑in.
I do not consider the level of security at the house assists me in coming to a decision as to what amount of the methylamphetamine was possessed by Ms Adams found by police officers at the house on 22 December 2015. This is particularly so in relation to the methylamphetamine found by police officers outside the house in the black camera case.
Mobile telephone communication
I have listened to the various intercepted telephone calls and read the text messages relating to Ms Adams that the State relies upon as part of its case.
In the various intercepted telephone calls and text messages relating to Ms Adams relied upon by the State it is clear to me that she was engaged in the regular sale or supply of illicit drugs to various persons from September to December 2015. Ms Adams in her evidence admitted this. The people participating in the telephone communications, including Ms Adams, use code, slang or indirect language when discussing drug purchases, supplies and sales.
The various telephone communications and text messages for the 8 counts on the indictment in which Ms Adams has pleaded guilty to indicate she has dealt methylamphetamine to six discrete persons.
In her evidence Ms Adams admitted she was dealing methylamphetamine to people prior to September 2015. In her evidence Ms Adams admitted she was dealing methylamphetamine in her local area to at least 15 people who she named in her evidence. In Ms Adams' evidence, and in her record of interview with the police officers on 21 January 2016, she said the amounts of methylamphetamine she generally sold or supplied to people varied from 0.1 g (a point), 0.5 g (a half weight), 1 g, 1.75 g (half an eight ball) or 3.5 g (an eight ball).
Ms Adams has pleaded guilty to 7 counts of making offers to sell or supply methylamphetamine to another by communications over a mobile telephone and the admitted facts relating to those 7 counts indicates the amounts of methylamphetamine vary from 0.15 g to 5.25 g between 6 October 2015 and 16 December 2015. Therefore, the State's submission that count 6 involves an offer to sell or supply 28 g (an ounce) is a much greater amount of methylamphetamine compared to what amounts Ms Adams' generally admitted dealing to others. The intercepted telephone communications are also consistent with Ms Adams generally offering to sell or supply small amounts of methylamphetamine of 5.25 g or less.
The State's case in relation to count 6 that Ms Adams was offering to sell or supply a larger amount of methylamphetamine, being 28 g (an ounce), to Colin Butera, requires an inference to be drawn from the language used by Ms Adams and the people she is communicating with in various intercepted mobile telephone calls or text messages.
Ms Adams accepted in her evidence that she often used code language when speaking to persons about methylamphetamine in mobile telephone calls or text messages.
The chemist
In the evidence of the chemist, Rohan Edmunds, he stated that when he analysed samples of the two amounts of methylamphetamine found by police officers on the dining room table and the samples of the four amounts of methylamphetamine found by police officers in the black camera case that one quantity of the methylamphetamine was a different profile. This was the bag of methylamphetamine weighing 26 g at 54% purity found in the black camera case. He also identified this amount of methylamphetamine as being different to the other five amounts of methylamphetamine because it contained the diluent dimethyl sulfone. In his opinion the difference in synthetic impurities to the other five samples indicated that this sample of methylamphetamine originated from a different synthesis batch to the other samples.
Defence case
Ms Adams gave evidence and called a witness Brent Graeme Davies.
Before the pleas of guilty were entered by Ms Adams, and in anticipation that the indictment was to proceed by way of a trial before a judge and jury, a notice of alibi dated 16 March 2018 was filed by the defence counsel for Ms Adams identifying that Brent Graeme Davies would give evidence that he placed methylamphetamine comprising of 26 g, 13.8 g, 4.7 g and 2.37 g in a black plastic case inside a cabinet on the back patio of the accused's home without the accused's knowledge or consent. These four amounts of methylamphetamine is the total quantity of methylamphetamine (46.87 g) found by police officers on 22 December 2015 in the black camera case in the cabinet on the back patio at the house.
Jodie Adams
Ms Adams, in her evidence, said that she was living with her partner, Mr John Varischetti, at the house on 22 December 2015 when the police attended her residence and executed the search warrant. The house was owned by Mr Varischetti.
At the time the offences were commenced, Ms Adams was employed at Produce Suppliers in Bullsbrook as an office manager.
Ms Adams gave evidence about her personal background including her tertiary education, her employment history, a marriage breakdown and a motorcycle accident in 2009 where she suffered significant injuries. Ms Adams said that she was unemployed for nearly two years after her accident.
Ms Adams stated she started using methylamphetamine just before she began to work at Produce Suppliers in 2014.
Ms Adams stated she had one initial drug supplier when she began using methylamphetamine.
She then became a 'dealer' who everyone gave their money to in order for her to collect their drugs. Her evidence was that she only supplied to people who lived locally near her who she knew. In her evidence she named approximately 15 people to whom she had supplied methylamphetamine. Some of those people she supplied methylamphetamine to more regularly than others.
Ms Adams stated that she did not make much money from supplying methylamphetamine to others. She stated would add to the price she sold the methylamphetamine to other people in order to cover the cost of her own personal use of methylamphetamine.
In relation to the methylamphetamine found by the police officers at the house on 22 December 2015, Ms Adams said she had purchased two eight balls (2 x 3.5 g), one for her own consumption and one for someone else. This other person had provided her with the money for the eight ball of methylamphetamine before Ms Adams received it. Ms Adams denied that she intended to sell or supply both these eight balls to other persons and she had made these two bags up for sale.
Ms Adams stated that the two eight balls of methylamphetamine on the dining room table were purchased from a man named John, who was of Asian descent. Ms Adams stated John had delivered this methylamphetamine to the house on the morning of 22 December 2015 about 10 minutes before the police came and executed the search warrant.
Ms Adams denied she had any knowledge of the methylamphetamine found by police officers in the black camera case. She stated she had never seen that methylamphetamine before and the items police officers found with it. She denied she had placed the methylamphetamine in that location. She stated she felt like someone was 'playing a really cruel joke' when the police found this methylamphetamine.
In Ms Adams' record of interview with police officers on 21 January 2016 when questioned about the methylamphetamine found in the black camera case, Ms Adams said that she 'was not in possession of that in any way, shape or form'.
Ms Adams stated the empty clip seal bags found by the police on 22 December 2015 in the drawer inside her house were going to be used by her to place methylamphetamine in.
As to the various handwritten notes found by police officers in the house on 22 December 2015, Ms Adams identified them as a list she had written identifying what she had spent money on, a list written by her partner about model helicopters, amounts relating to negotiations on roller shutter purchases and a list of electrical appliances. She admitted another one was a tick list but it was for small amounts of methylamphetamine which were points and half weights. She testified that it was not all her writing on the various notes found by police officers. She said that she recognised the handwriting of Robert Spencer on some of the notes. In my view, there is clearly different styles of handwriting in these notes.
Ms Adams stated Brent Davies was present at her house at the end of the police search on 22 December 2015 as he was called by someone to help secure the house. She stated Mr Davies had also attended at the house on the previous day, 21 December 2015. Text messages on the intercepted mobile telephone number associated with Ms Adams on 21 December after 5.00 pm confirms this.
When Ms Adams was questioned about the telephone calls the subject of count 6 on the indictment, and whether it was an ounce of methylamphetamine she was discussing with Mr Butera, Ms Adams stated that she did not have the means to supply such a quantity of methylamphetamine nor would she ever want to. She denied she had ever sold or offered to sell an ounce of methylamphetamine to anyone.
Ms Adams stated that her level of methylamphetamine usage was approximately a gram a week. She stated that her partner used a greater amount of methylamphetamine than her, probably about half an eight ball (1.75 g) a week.
Ms Adams gave evidence that she would on occasions leave small amounts of methylamphetamine around her house or outside her house for Mr Varischetti to use or to be picked up by other people including Mr Davies as she was the dealer for a small group of local users. Ms Adams said on occasions she would leave small amounts of methylamphetamine at the house Mr Davies was staying at for others to pick up.
Ms Adams admitted she would use 'code' when communicating with people about methylamphetamine. She used terms such as 'porridge, lunch, carton, and paperwork' for drugs and money. Ms Adams stated that sometimes in the intercepted telephone calls she was actually referring to the actual thing and not in code. For example, on occasions when she was communicating with Mr Davies about 'a carton or half carton' this could be reference to methylamphetamine or alcohol.
Ms Adams gave evidence that she had a close relationship with Mr Davies and assisted him when he was going through a difficult period in his life. She said Mr Davies also used the nickname of 'Fonc'. She disputed that Mr Davies was dealing methylamphetamine for her.
Ms Adams stated that she had a number of methylamphetamine suppliers that she would use in 2015. One of them was a Michael Finlay and another was a person called 'Ramji'. Ms Adams stated that she met Ramji on two occasions but handed back the methylamphetamine he had supplied her as it was terrible quality.
In relation to text messages Ms Adam had with Ramji on 20 December 2015, Ms Adams denied that a 'kebab' referred to an ounce of methylamphetamine. She stated that a 'kebab' was a 'ball' (3.5 g) of methylamphetamine.
Ms Adams denied that Mr Finlay would supply her with ounces of methylamphetamine. She stated that she preferred to pay upfront for the drugs she received and usually did, although how she paid Mr Finlay varied.
Ms Adams stated that she had never purchased methylamphetamine in amounts of more than two to three balls (3.5 g each) and had never purchased an ounce (28 g). She stated that she had never sold an ounce to anyone. She denied that she was a 'big time dealer'.
Ms Adams in her evidence confirmed that she admitted all the offers to sell methylamphetamine that related to counts 1 ‑ 5 and 7 ‑ 8 on the indictment and the amended facts relating to these counts as read by the State prosecutor at the beginning of the trial of issues. In relation to count 6; the offer to sell or supply methylamphetamine to Colin Butera she denied that she had the means to supply an ounce or a kilo of methylamphetamine. She said she would not want to supply that amount to anyone and she denied ever having these amounts of methylamphetamine in her possession.
Ms Adams in her evidence couldn't remember all the details of the text messages surrounding the telephone calls of 4 December 2015 with Mr Butera. She stated that she never intended to supply him with a large amount of methylamphetamine. Her evidence was she only ever supplied Mr Butera with small amounts of methylamphetamine previously, a half ball (1.75 g) or an eight ball (3.75 g) as the absolute maximum.
This evidence is inconsistent with what Ms Adams said to the police officers in her record of interview on 21 January 2016. In that interview, when questioned about the first telephone call of 4 December 2015 Ms Adams admits that Mr Butera wanted the price of an ounce. She admitted that '1650 through to 20' would be the price of an ounce but it was a ridiculously expensive amount she gave him so Mr Butera would just go away.
At the end of her evidence Ms Adams stated 'I did not ever sell or have any intention to sell Colin (Butera) an ounce' and 'the stuff (methylamphetamine) on the back patio did not belong to me'.
Brent Davies
Mr Davies is a 48 year old truck driver who now lives in Melbourne. In December 2015 he was staying in a house owned by Michael King at 23 Orchard Street, Upper Swan near Ms Adams' house. He was a user of methylamphetamine and has used it for almost 20 years. Around December 2015 he was using between 1 to 5 g of methylamphetamine a week.
Mr Davies gave evidence that he had a previous conviction in Queensland in 2006 or 2007 relating to possession of 20 g of methylamphetamine.
Mr Davies said he considered Ms Adams a good friend. Mr Davies said Ms Adams had provided him with some assistance with his family affairs in late 2015 after his father died in October 2015. He had received a benefit under the estate of his parents totalling $32,600.
Mr Davies gave evidence that he attended the house on the morning of 21 December 2015 to borrow some tools. He went back to the house a number of times during that day to pick up tools. Ms Adams was not at the house when he attended at it. Text messages between Ms Adams and Mr Davies confirm that he was at Ms Adams' house after 5.00 pm on 21 December 2015 and there is a message about tools.
Mr Davies stated that when he attended the house on 21 December 2015 he had in his vehicle the four clip seal bags of methylamphetamine in the black camera case. He stated that the methylamphetamine was for his own personal use and at the time he was using between 1 to 5 grams of methylamphetamine a day. He had previously purchased that methylamphetamine from a man named John who was Asian. He said that he purchased this methylamphetamine on approximately five different occasions from John around the Midland area less than two weeks before 21 December 2015. He stated he purchased one of the bags from an associate whom he met with John.
Whilst he was at the house on the evening of 21 December 2015 Mr Davies said he received a text message from an ex‑partner named Mel who lived in the Southern River/Canning Vale area who asked him to come to her house. As he did not want to travel through the metropolitan area with a large quantity of methylamphetamine in his possession, Mr Davies left the methylamphetamine in the black camera case in the cabinet on the back patio of Ms Adams' house after taking a small scoop of methylamphetamine out for his own use. He stated he also left a toiletries bag which contained a set of scales and a few plastic bags in the cabinet. He left Ms Adams house between 6.00 pm to 6.30 pm.
Mr Davies gave evidence that he attended at the house on 22 December 2015 after receiving a request to attend to keep an eye on the place from Mr Varischetti. When he arrived police officers were present at the house. He stayed at the house until Mr Varischetti and Ms Adams returned after being taken away by police officers. He said that while he was at the house he opened the cabinet on the back patio and saw that his methylamphetamine had gone.
Mr Davies gave evidence that he did not inform Ms Adams or, Mr Varischetti that he had left the methylamphetamine at the house. He intended to retrieve the methylamphetamine the next day but could not do this due to the police presence on 22 December 2015.
It was not until a few months later, possibly in May 2016 that Mr Davies said he told Ms Adams about him placing his methylamphetamine in the black camera case in the cabinet on the back patio at the house. He told Ms Adams he would go to a lawyer and make a statement.
In June 2016, Mr Davies provided a lawyer with a statement concerning his involvement with the 46.9 g of methylamphetamine found by the police on 22 December 2015 in the black camera case in the cabinet on the back patio at the house. This statement is exhibit 8 and is generally consistent with the evidence Mr Davies gave at the trial of issues.
Mr Davies instructed his solicitor that the statement he had made about what he did with his methylamphetamine on 21December 2015 at Ms Adam's house could be provided to Ms Adams' legal counsel and he was also prepared to give evidence at Ms Adams' trial.
Mr Davies gave evidence that he was supplied with methylamphetamine by Ms Adams on some occasions but he never supplied the drug to her. He admitted on occasions he had collected methylamphetamine from Ms Adam's house and then supplied it to others. Mr Davies said he would buy half balls (1.75 g) or on the odd occasion a ball (3.5 g) from Ms Adams.
It was clear to me that Mr Davies was aware that he was incriminating himself when he testified that he owned the methylamphetamine found by police officers in the black camera case and that he had placed it there on 21 December 2015. Mr Davies stated that he had previously received advice from his solicitor as to the provisions of s 11 of the Evidence Act 1906 (EA) and he stated in his evidence 'that he was standing up for what I've done'. At no stage did Mr Davies refuse to answer any questions concerning what he had done with the black camera case containing the methylamphetamine.
At the end of his evidence Mr Davies said he was not giving evidence to take the fall for anyone but to finally take responsibility for his own actions. He stated he had let good friends down. He wanted to do the right thing, own up for what he has been doing and turn his life around.
Findings of fact on the trial of issues
Count 10
There is no direct evidence linking Ms Adams to the 46.87 g of methylamphetamine found by police officers in the black camera case on 22 December 2015.
The State relies on circumstantial evidence and an inference to be drawn that Ms Adams possessed this amount of methylamphetamine as she placed it in that location and therefore knew about it. The State relies on the facts such as Ms Adams lived at the house, her various telephone communications with persons such as Mr Finlay and Ramji leading up to the 22 December 2015, items found by police officers on 22 December 2015 consistent with drug dealing, fortification of the front door of the house and Ms Adams own admissions that she did deal methylamphetamine to others for the inference to be drawn.
Ms Adams denied any knowledge of the 46.87 g of methylamphetamine in her evidence, in her record of interview on 21 January 2016 and when the police officers found it at the house on 22 December 2015 and showed it to her. Ms Adams did not resile from her position at any stage during her evidence. Her evidence is that she used methylamphetamine herself and dealt to other people much smaller amounts of methylamphetamine.
The cabinet on the back patio of the house where the methylamphetamine in the black camera case was found by police on 22 December 2015 was not locked. The cabinet was outside the house and relatively easily accessible to anyone. On the undisputed evidence, people such as Mr Davies regularly attended at the house when Ms Adams was not present at the house. Some of these people who attended the house were methylamphetamine users. This included Mr Davies.
One amount of methylamphetamine in the black camera case (26 g) had a different profile when compared to the profiles of the two amounts of methylamphetamine found on the dining room table. An inference therefore arises that the methylamphetamine in the black camera case may have come from a different source and was placed there by a different person than the person who placed the methylamphetamine on the dining room table inside the house.
Mr Davies was open and candid about his methylamphetamine usage and his involvement with Ms Adams. He was adamant in his evidence that he placed the black camera case containing the methylamphetamine in the cabinet on the back patio of the house on the evening of 21 December 2015 notwithstanding this was an incriminating admission made by him. During the trial of issues Mr Davies did not make an application for a certificate to be issued to him pursuant to s 11 of the EA. He was aware of his right to make such an application.
I found Mr Davies a reliable and credible witness and accept his evidence about his attendances at the house on 21 and 22 December 2015.
I accept Mr Davies' evidence that he placed the black camera case containing the methylamphetamine in the cabinet on the back patio at the house on the evening of 21 December 2015. I accept the evidence of Ms Adams that she had no knowledge that Mr Davies did this and therefore the first time she was aware of this methylamphetamine and its location at her house was when the police officers found it and showed it to her on the morning of 22 December 2015.
It follows that I cannot be satisfied beyond reasonable doubt that the State has proved Ms Adams possessed the 46.87 g of methylamphetamine found by police officers on 22 December 2015 in the black camera case.
I find Ms Adams only possessed the 7.05 g of methylamphetamine on the dining room table inside the house which she has admitted to possessing.
I therefore must deal with the factual dispute as to how much of 7.05 g on the dining room table Ms Adams intended to sell or supply to another. In relation to that factual dispute Ms Adams has the onus of proof and must only satisfy me of this on the balance of probabilities.
In considering Ms Adams' evidence of her level of personal methylamphetamine usage, the facts she admits in relation to counts 1 ‑ 5, 7 and 8 on the indictment, and generally the various telephone communications involving Ms Adams, I am satisfied on the balance of probabilities that Ms Adams did intend to supply only one of the two bags of methylamphetamine on the dining room table in the house to another person who had already paid her for this amount of methylamphetamine. This intention of Ms Adams is generally consistent with the evidence of Ms Adams about her dealing in small amounts of methylamphetamine to a group of people in her local area and obtaining methylamphetamine for her own use from her suppliers in 2015.
Count 6
The factual dispute relating to the amount of methylamphetamine Ms Adams offered to sell or supply to Colin Butera in the telephone communications on 4 December 2015 is more difficult to resolve. The State's case is circumstantial in relation to its submission that the offer to Mr Butera was for 28 g (an ounce).
Mr Butera did not give evidence.
The State relies on an inferences being drawn that the amount 28 g (an ounce) was offered by Ms Adams to Mr Butera based on the various telephone communications by Ms Adams with Mr Butera and also with Mr Finlay. Many of these telephone communications are in code. An ounce or 28 g is not mentioned by Ms Adams or Mr Butera in their telecommunications. This amount is never mentioned by Ms Adams in any of her telecommunications with anyone.
The State's case also relies on an inference being drawn that the figures mentioned by Ms Adams in telephone calls to Mr Butera on 4 December 2015 is consistent with an offer to sell or supply an ounce of methylamphetamine. The amount of $16,500 to $20,000 that the State submits is what Ms Adams is referring to by code when she says 'his BBQ pack will range between 1650 through to 20' in her telephone call with Mr Butera at 9.55 pm on 4 December 2015.
The State's case also relies on the circumstantial evidence of other surrounding telephone communications on 4 December 2015 between Ms Adams and Mr Finlay who was a supplier of methylamphetamine to Ms Adams. The State submits based on these other telephone communications between Ms Adams and Mr Finlay on 4 December 2015 an inference can be drawn she was sourcing an ounce of methylamphetamine for Mr Butera.
I consider Ms Adams' evidence as to her telephone communications with Mr Butera on 4 December 2015 as vague and unconvincing. She was not certain in her evidence as to what the telephone communications were about.
Ms Adams accepted in her record of interview with police officers on 21 January 2016 that her comment '1650 to 20' would be for an ounce not a kilo of methylamphetamine. She stated she gave Mr Butera a ridiculously expensive price so he would just go away.
The telephone communications Ms Adams had with Mr Finlay, who was one of her methylamphetamine suppliers on 4 December 2015, after Mr Butera's telephone call to her are consistent with her seeking to obtain an ounce of methylamphetamine for Mr Butera from Mr Finlay.
I am satisfied beyond reasonable doubt on all the evidence that the only reasonable inference is that Ms Adams at 9.55 pm on 4 December 2015 was offering to sell or supply 28 g (an ounce) of methylamphetamine to Mr Butera in the telephone call on 4 December 2015 after he had made the initial enquiries with her at 4.41 pm by telephone call and at 4.49 pm by text message to obtain that amount of methylamphetamine from her.
Conclusion
Given my factual findings on the trial of the issues I will sentence Ms Adams on the following factual basis:
1.On count 10 that on 22 December 2015 Ms Adams possessed 7.05 g of methylamphetamine being the contents of the two plastic bags found on the dining table in the house with intent to sell or supply to another. Ms Adams intended to supply one of the bags of methylamphetamine to another person and use one herself.
2.On count 6 that on 4 December 2015 Ms Adams offered to sell or supply an 28 grams (an ounce) of methylamphetamine to Colin Butera.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
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ASSOCIATE TO JUDGE PRIOR27 AUGUST 2018
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