The State of Western Australia v Bonham-Smith - [2022] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- BONHAM-SMITH [2022] WADC 122
CORAM:   LEMONIS DCJ
HEARD:   5-7 DECEMBER 2022
DELIVERED          :   22 DECEMBER 2022
FILE NO/S:   IND 2224 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
GUY BONHAM-SMITH

Catchwords:

Pleas of guilty to possession of a trafficable quantity of methylamphetamine with intent to sell or supply, possession of cocaine with intent to sell or supply and possession of money reasonably suspected to be unlawfully obtained - Trial of issues to determine whether relevant intent included an intent to sell, or was only to supply in a social setting - Trial of issues also to determine the extent of the money reasonably suspected to have been unlawfully obtained

Legislation:

Criminal Code (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Relevant intent determined to include an intent to sell in respect of the methylamphetamine and the cocaine
Determination made as to extent of monies reasonably suspected to be unlawfully obtained

Representation:

Counsel:

The State of Western Australia	:	Mr S A Bedells
Accused	:	Mr S J Walker

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Western Legal

Case(s) referred to in decision(s):

Birch v The State of Western Australia [2017] WASCA 19
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Lau v The State of Western Australia [2017] WASCA 16
Law v The State of Western Australia [2009] WASCA 193
R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308
R v Falzon [2018] HCA 29; (2018) 264 CLR 361
The State of Western Australia v Thompson [2014] WASCA 108

LEMONIS DCJ:

These reasons are in respect of a trial of issues to determine Mr Bonham‑Smith's criminal culpability in respect of drug‑related offending.
Mr Bonham‑Smith has pleaded guilty to six counts on the indictment. Relevantly, those counts include:
(a)at count 1, that he had in his possession a trafficable quantity of methylamphetamine with intent to sell or supply it to another;[1]
(b)at count 2, that he had in his possession cocaine with intent to sell or supply it to another;[2]
(c)at count 3 that he had in his possession cannabis with intent to sell or supply;[3] and
(d)at count 4 that he had in his possession money that was reasonably suspected to have been stolen or unlawfully obtained.[4]
[1] Section 6(1)(a) and s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA).
[2] Section 6(1)(a) and s 34(1)(aa) of the MDA.
[3] Section 6(1)(a) and s 34 (2)(a) of the MDA.
[4] Section 417 of the Criminal Code (WA).
The items, the subject of these counts, were seized by police during a search conducted on 18 August 2020 of the home and property where Mr Bonham-Smith lived.
The quantity of methylamphetamine the subject of count 1 is 81.49 g. This is made up of a number of different parcels of methylamphetamine contained in clip seal bags. The largest parcel is 55.6 g. It is this parcel which takes Mr Bonham-Smith over the 28 g threshold for there to be a trafficable quantity of methylamphetamine.
The quantity of cocaine the subject of count 2 is 16.62 g and the saleable quantity of cannabis the subject of count 3 is 2.996 kg.
These drugs were all seized from a shed on the property. The shed was predominantly used by Mr Bonham‑Smith. He slept in the bedroom of the house on the property and at times in the shed itself. The 55.6 g parcel of methylamphetamine was found under the couch in the shed.
In respect of count 4, police seized a total of $40,135 in cash from the shed. This was comprised of $17,885 in a lockbox bolted to the floor, $21,050 sealed in Cryovac inside a hessian bag and $1,200 in an envelope.
The dispute which requires this trial of issues is in relation to counts 1, 2 and 4.
In relation to counts 1 and 2, the State's position is that Mr Bonham‑Smith intended to sell a portion of the methylamphetamine and cocaine to others. Accordingly, the State contends that Mr Bonham‑Smith was in possession of those drugs for commercial gain. The State accepts he would have used some of the drugs for his own personal use. In relation to count 4, the State says there is a reasonable suspicion that all of the money (principally the $17,885 in the lockbox and the $21,050 in the hessian bag) was unlawfully obtained because it came from the sale of drugs.
Mr Bonham‑Smith's position is that:
(a)he did not intend to sell any of the methylamphetamine or cocaine;
(b)he intended to use the vast majority of the methylamphetamine and cocaine for his own personal use;
(c)he may have supplied a small portion of the methylamphetamine and cocaine to friends in a social setting;
(d)he was not aware of the 55.6 g parcel of methylamphetamine found under the couch;
(e)he intended to sell some of the cannabis; and
(f)the cash in the sum of $17,885 came from the sale of cannabis. The cash in the sum of $21,050 was personal savings from lawful work activities. He could not recall the source of the cash in the sum of $1,200.
Where the State seeks to have a sentencing judge take into account a matter which increases the culpability of the offender, the State must establish that matter beyond reasonable doubt. In my view, the State's contention that Mr Bonham‑Smith intended to sell a portion of the methylamphetamine and cocaine the subject of counts 1 and 2 respectively does increase his culpability because it results in him being in possession for commercial gain. That would ordinarily result in a more severe sentence. Accordingly, the State must prove the alleged intent to sell that beyond reasonable doubt.[5] In addition, in relation to count 4, if the reasonable suspicion also extends to the $21,050, the amount of money the subject of count 4 is significantly increased, which increases the seriousness of the offending. Accordingly, the State must also prove beyond reasonable doubt that there is a reasonable suspicion that both large parcels of cash came from the sale of drugs.
[5] See The State of Western Australia v Thompson [2014] WASCA 108 (Thompson).
The State's case is a circumstantial case. Therefore, I must be satisfied that the inference which the State asks me to draw is the only reasonable inference or conclusion that can be drawn consistent with the proven facts. For an inference or conclusion to be reasonable it must rest upon something more than mere conjecture. In applying inferential reasoning, I do not consider the facts in isolation; rather, I consider them as a whole to determine whether the inference contended for by the State is the only inference reasonably available. So, circumstantial evidence must not be considered on a piecemeal basis; it must be evaluated in its entirety.
A critical aspect of the State case is that at the time of the search Mr Bonham-Smith was engaged in the business of selling methylamphetamine and cocaine.[6] The State points to this being a powerful circumstance demonstrating that Mr Bonham‑Smith's intent was to sell some of the methylamphetamine and cocaine the subject of counts 1 and 2.
[6] See R v Falzon [2018] HCA 29; (2018) 264 CLR 361 [1].
Mr Bonham‑Smith's contention that his intent was limited to supplying a small portion of the methylamphetamine and cocaine to friends in a social setting must be established by him on the balance of probabilities. In that respect, such a limited intent reduces his culpability and would result, if proven, in a lesser sentence.
Further, if I am not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, whether adverse to or in favour of Mr Bonham‑Smith, as the case may be. Where a sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing.[7]
[7] Law v The State of Western Australia [2009] WASCA 193 [34].
Therefore, if I am not satisfied of either the State's or Mr Bonham‑Smith's position, then I must sentence Mr Bonham-Smith on the basis that he had an intent to sell or supply.[8]
[8] Thompson [26].
In relation to the money found in the shed, if I am satisfied beyond reasonable doubt that there is a reasonable suspicion that all of it was unlawfully obtained, then I need to consider whether Mr Bonham‑Smith has established on the balance of probabilities that the sum of $21,050 has come from legitimate sources. If he does establish that, it would demonstrate he had no reasonable grounds for suspecting that the $21,050 was unlawfully obtained.[9] If that were so, the sum of $21,050 would not fall within the ambit of the offence committed.
[9] Section 417(2) of the Criminal Code.

Evidence adduced at hearing

At the hearing, the State tendered the State brief and a further bundle of documents, within which was messages received on Mr Bonham‑Smith's phone on the day of the search. The State also played an edited video of the search conducted on 18 August 2020, which is the day when Mr Bonham‑Smith was in possession of the relevant drugs and money. During the search, Mr Bonham‑Smith answered questions asked of him by the police officers.
The State also called Detective Brown who was the investigating officer, who also gave evidence of an expert nature as to certain matters to do with the use of drugs and the drug trade generally.
Mr Bonham‑Smith also gave evidence.
I may accept a part of a witness's evidence and reject other parts of their evidence. I may reject all of a witness's evidence. Further, I cannot be satisfied beyond reasonable doubt of the State's contentions if I consider what Mr Bonham-Smith has said in evidence regarding that might be true.
Before turning to the evidence, I need to first address the effect of Mr Bonham-Smith's plea of guilty in respect of count 1.

The effect of the plea to count 1

Mr Bonham-Smith has pleaded guilty to being in possession of methylamphetamine with intent to sell or supply and that the offence involved a trafficable quantity of methylamphetamine. A person may plead guilty because they consider their prospects of being found not guilty are not strong. However, a guilty plea necessarily involves an admission of all of the essential facts of the offence and negatives all defences.[10]
[10] Birch v The State of Western Australia [2017] WASCA 19 [69], [171].
A trafficable quantity of methylamphetamine means the quantity is not less than 28 g.[11] Here, the total weight of the methylamphetamine is 81.49 g. Accordingly, the 28 g threshold is only exceeded by reason of the 55.6 g parcel. Therefore, Mr Bonham-Smith's plea must carry with it that he was in possession of the 55.6 g parcel, otherwise he would not be in possession of a trafficable amount.
[11] Section 34(1A) of the MDA.
For Mr Bonham-Smith to be in possession of the 55.6 g parcel, he must have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that:[12]
(a)he had that parcel in his control or under his dominion; and
(b)it was a prohibited drug.
[12] Lau v The State of Western Australia [2017] WASCA 16 [66] - [67].
Accordingly, if he was not aware of the 55.6 g parcel, then he cannot be in possession of it.
In the search video, Mr Bonham-Smith admitted possession of the 55.6 g parcel, saying he had bought it, touched the bag in which it was situated and intended to smoke it. In his evidence however, he said he was not aware of it.
Defence counsel seek to have Mr Bonham-Smith sentenced on the basis that I should accept he was not aware of that parcel and that is then a relevant circumstance going to his intent. I have great difficulty with this proposition because Mr Bonham-Smith's plea of guilty accepts for the purposes of his sentencing that he had an awareness or belief that the parcel of 55.6 g was under his control or in his dominion. In any event, I do not need to finally resolve that issue as for the reasons explained below, I reject Mr Bonham-Smith's evidence.

Matters not in issue

There are certain matters not in issue which relate to the matters that were found during the search. These matters principally arise from pars 5 - 14 of the statement of material facts and the search video. Those matters are as follows:
1.In the shed, police officers located a lockbox bolted to the floor.
2.The lockbox contained various containers and clip seal bags, which in turn contained:
(a)6.52 g of methylamphetamine with a purity of 80%;
(b)1.87 g of methylamphetamine with an unknown purity;
(c)3.5 g of methylamphetamine with a purity of 57%;
(d)5.52 g of cocaine with a purity of 22%;
(e)4.88 g of cocaine with a purity of 24%; and
(f)2.88 g of cocaine with a purity of 24%.
3.In addition to those drugs, the lockbox contained:
(a)two x 1 kg silver bars with ABC certificates of authenticity;
(b)cash in Australian currency to the value of $17,885 contained partly in sandwich bags, partly in bundles held together with elastic bands, and partly loose; and
(c)a small container which contained additional packets of tablets constituting 1.46 g (total) of MDMA.
4.Police located a small metal box under the couch. After forcing entry into the box, police officers found, in clip seal bags:
(a)14.0 g of methylamphetamine with a purity of 72%; and
(b)3.34 g of cocaine with a purity of 22%.
5.Also under the couch, police officers located a clip seal bag containing 55.6 g of methylamphetamine with a purity of 73%.
6.Police officers seized further cash as follows:
(a)$21,050 sealed in Cryovac in a hessian bag on the couch in the shed; and
(b)$1,200 in an envelope, on a table in the shed.
7.In various locations around the shed, police officers found:
(a)clip seal bags which contained residue of white powder, which Mr Bonham-Smith admitted during the search had contained methylamphetamine or cocaine;
(b)packets of new, unused clip seal bags;
(c)a large packet of coloured rubber bands;
(d)MDMA purity testers and cocaine purity testers, which Mr Bonham-Smith said during the search he was planning to use on drugs that he was consuming himself;
(e)three sets of digital scales, all functional, two of which had white residue on them;
(f)14.92 g of psilocybin mushrooms;
(g)glass smoking implements;
(h)a vacuum sealing machine;
(i)an Ultrasonic cleaner;
(j)a container which held a white powder, which was creatine;
(k)a working taser, which also operated as a torch;
(l)a CCTV system; and
(n)a money counting device.
8.Additionally, police officers located a notepad in the shed, which had handwritten notes on it, which Mr Bonham‑Smith admitted were written by him. These form part of exhibit 2.
9.Also in the shed, police officers located a total of approximately 5.161 kg of cannabis, in various vacuum sealed bags, clip seal bags, jars, boxes, bins and containers. The parties have agreed that 2.996 kg of this cannabis was saleable.
10.In Mr Bonham-Smith's bedroom police located 30 individual 1 kg bars of silver.

Evidence of Detective Brown

It is useful to start by summarising Detective Brown's expert evidence and then go to what Mr Bonham‑Smith said during the search and in his evidence.
Detective Brown described how a regular user of methylamphetamine will use between 0.1 g and 0.5 g per day and a heavy user around 1 g per day.
He explained that the larger the amount purchased the cheaper it was. He described how it is purchased in quantities as follows:
(a)point - 0.1 of a gram;
(b)half weight - 0.5 of a gram;
(c)weight - 1 g;
(d)half ball - 1.75 g;
(e)ball - 3.5 g;
(f)quarter - 7 g;
(g)half ounce - 14 g; and
(h)ounce - 28 g.
He said in 2020 the price of methylamphetamine had gone up significantly because of COVID-19. He described the prices of methylamphetamine, cocaine and cannabis in August 2020 as being:
(a)0.1 g of methylamphetamine - $216;[13]
(b)half weight of methylamphetamine (0.5 of a gram) - $873;[14]
(c)55 g of methylamphetamine - $36,000;[15]
(d)1 ounce of methylamphetamine - $18,000;[16]
(e)1 ounce of cocaine - $8,833;[17]
(f)1 g of cocaine - $400;[18]
(g)1 g - 1.5 g of cannabis - $25;[19]
(h)a 'couple of grams more' of cannabis - $50;[20]
(i)1 pound of cannabis - $4,500;[21] and
(j)1 ounce of cannabis - $300 - $400.[22]
[13] ts 38.
[14] ts 39.
[15] ts 75.
[16] ts 65.
[17] ts 40.
[18] ts 40.
[19] ts 40.
[20] ts 41.
[21] ts 42.
[22] ts 42.
He described how drug dealers buy in larger quantities because they get a cheaper price and then re‑sell for smaller amounts which equate to a higher price per gram.
In relation to cocaine, he said people need to ingest more to get the same effect as from methylamphetamine and it is common that people would buy a gram. He also explained it was most common that it is ingested through the nose through a straw which enabled the cocaine to get into the bloodstream.
In relation to cannabis, he described how the weights in which that is sold might be a stick, which is a small clip seal bag with about 1 g - 1.5 g inside, or what is called a 50 bag which is a bag that costs $50. He said cannabis is also sold in ounces and pounds.
He also described how people 'chop drugs', that is they combine them with other substances to increase the weight, but this correspondingly reduces the purity.
He described how creatine can be used to chop cocaine because it has a similar appearance to cocaine.
He described how drug dealers commonly keep their cash and drugs somewhere safe, how drug dealers use CCTV to know when police are coming or whether there might be a run through of their property.
He described how drug dealers use a money counter where there are large amounts of cash which are too much to count by hand.
In respect of the Samsung A11 phone found in the shed, he said this is an encrypted phone that has its own applications installed on it and is end‑to‑end encrypted. He said the subscription to use such a phone is around $1,500 per month. He also said that such a phone costs about $1,500 - $3,000.
He described how the word 'Charlie' is a common phrase for cocaine.
He described how the number '1' was a reference to the weight of what was sought to be bought or sometimes to reflect that the purchaser was seeking to buy the usual amount that they bought.
He described tick lists as being lists that set out the record of what a drug user owes a drug seller for drugs purchased from them. He described how drug dealers use gloves to prevent DNA and fingerprints going on to the items used to sell the drugs.
He described how language like 'qrt' is slang for quart and 'fiddy' is slang for a 50 bag or $50 worth of cannabis. He also described how 'P' is used to refer to ordering a point of methylamphetamine.

Mr Bonham-Smith

Search video

At the start of the search video, Detective Brown asked Mr Bonham‑Smith if he was under the effect of any drugs or alcohol and he said no.
During the search of the shed, the police officers first located methylamphetamine in a lockbox that contained various containers and clip seal bags. The containers and bags contained the quantities of drugs that are set out at [29(2)] above as well as $17,885 in cash. The two larger containers contained the cocaine and the smaller container contained MDMA and the clip seal bags contained the methylamphetamine.
After finding this, the police officers questioned Mr Bonham‑Smith and he said, 'I'm a bit of an addict so I use a little bit of that too'.

This was in reference to the methylamphetamine that was found. He was then asked about the cocaine and why he had cocaine and he said because he uses it too when he does not have the other stuff.[23]
[23] Search video, ts 28.
He was asked also about the MDMA, and he said that is for partying on the weekends, saying he just has a couple here and there.[24]
[24] Search video, ts 29.
He said the drugs were in different clip seal bags because he was rationing them, saying he supplies a little bit and then splits it up, 'so I don't use so much of it. I'm trying to, you know, put a cap on the habit'.[25]
[25] Search video, ts 29.
Police asked him where he got the money in the lockbox from. He said that the $5 and $10 notes he had been saving for 'fucking eons and the other stuff is just wheeling and dealing', and by dealing he means cars he sells. He then also went on to explain that it also came from his working as a mechanic.
He was asked to give the PIN code for his phone. Initially he said no and then he said he could not remember it.
In respect of the $21,050 found in the hessian bag, Mr Bonham‑Smith said it was savings from being a mechanic.[26]
[26] Search video, ts 49.
Before proceeding further with the search the police officers summarised what had been found, referring to the cannabis and the cocaine and the methylamphetamine in the lockbox. Detective Brown asked Mr Bonham‑Smith whether there was anything else in the shed and he said, 'Nah, nothing I know of, no'.[27]
[27] Search video, ts 53.
Subsequently, police located the further 69.6 g of methylamphetamine and 3.34 g of cocaine that is referred to at [29(4)] and [29(5)] above.
Mr Bonham-Smith then said he had a heavy addiction.[28] This is to be contrasted with what he said earlier on during the search where he said that he was a bit of an addict. Ultimately, he said he smoked at least a gram a day of methylamphetamine[29] and he planned on sniffing the cocaine.
[28] Search video, ts 88.
[29] Search video, ts 91.
In relation to the 55.6 g when Mr Bonham-Smith was initially asked about it during the search, he made no comment.[30] He eventually said he got it from a person, he bought it long ago for a couple of grand, he had touched the bag it was in, he was going to smoke it and was not going to give it to anyone.[31] When Detective Brown then said the bag containing the drugs was inside an Energizer tin found under the couch, Mr Bonham-Smith said it was not in the tin. Another officer then confirmed the parcel of 55.6 g was found next to that tin.[32]
[30] Search video, ts 88.
[31] Search video, ts 89.
[32] Search video, ts 90.
In relation to the cannabis, Mr Bonham-Smith said he sold a couple of ounces a week maybe.[33] He also said that he smoked over an ounce a week or a quarter of an ounce a day, so roughly a couple of ounces a week.[34] He also said that the cannabis in the shed represented a year's supply of cannabis.[35]
[33] Search video, ts 37 - ts 38.
[34] Search video, ts 72.
[35] Search video, ts 72 - ts 73.
During the search, Detective Brown asked Mr Bonham‑Smith about the lists containing names and dollar amounts and Mr Bonham‑Smith said these were to do with his work as a mechanic.
On my assessment, what has happened during the course of the search is that as more items are found Mr Bonham-Smith has adjusted his version of events to try and accommodate the change. Specifically, at the start Mr Bonham‑Smith says he is only a bit of an addict but then ultimately once all of the drugs were found, he said he was a heavy addict.

Mr Bonham-Smith's evidence in court

Examination-in-chief

In Mr Bonham‑Smith's evidence, he said that he did not sell methylamphetamine and cocaine and did not intend to sell the methylamphetamine and cocaine the subject of counts 1 and 2. He said he intended to sell the substantial amount of the cannabis that was in the shed to fund his drug habit.[36] He also described how he intended to use some of the cannabis and to supply it to people in a mutual social session by smoking it with them.[37]
[36] ts 78.
[37] ts 79.
Mr Bonham-Smith described how he was a heavy drug addict. He said that at the time of the police search he was a user of methylamphetamine and had been using for a fair while, although he could not be more specific.[38] He said at the time of the search he was using in excess of a gram per day.[39]
[38] ts 80.
[39] ts 80.
In relation to the 55.6 g of methylamphetamine he said that he was unaware completely of it.[40] Obviously, that contradicts what he said during the search, where he described what he bought it for, that he had touched it and that he intended to smoke it.
[40] ts 81.
He said that in relation to all the methylamphetamine that was in the shed he intended to smoke it, that is use it for himself and that he did not intend to sell any of it.[41] He said if he had been sitting around with friends that were smoking methylamphetamine he probably would have shared with them in that way.[42]
[41] ts 82.
[42] ts 83.
In relation to the cocaine in the shed, he said it was to use for his own habit. He said he did not intend to sell it and that if he was using it and accompanied by friends, he may have shouted them.[43]
[43] ts 83.
In summary then on this evidence, Mr Bonham-Smith:
(a)accepted he would sell and supply the cannabis;
(b)denied he would sell the methylamphetamine and cocaine; and
(c)said there could be a possible supply of the methylamphetamine and cocaine by him making it available in a social setting.
In relation to the digital scales in the shed, he said he used these to make sure he was receiving what he was buying and to ration out what he could use for himself in respect of the methylamphetamine and cocaine, so put a cap on it.[44] He also said the clip seal bags in the shed were for rationing out his personal use of drugs and also for the sale of cannabis.[45]
[44] ts 83.
[45] ts 84.
He described the rationing out as being:[46]
I would separate some and put it in another bag to delegate that for a certain day, and so on with another bag for the next day. Or maybe if I was going somewhere or - to take some with me.
[46] ts 84.
He was asked what amounts he was putting in the bags for rationing and he said he could not remember.[47]
[47] ts 84.
He explained his work history, saying he had his own ABN number for his mechanics business and was often paid in cash and would not always put this in the bank.[48] He said that the sum of $21,050 in the Cryovac bag within the hessian bag was work money and that the $17,885 in the lockbox came from the selling of weed.[49] This contradicts what he said during the search, which was the money came from his mechanical work, wheeling and dealing and saving $5 notes. He could not recall where the $1,200 in the envelope came from.[50]
[48] ts 85.
[49] ts 85 - ts 86.
[50] ts 86.
He described how after the search he had completed tax returns for the 2018, 2019 and 2020 taxation years. He said the cash received from his mechanics business was:[51]
(a)in respect of the 2018 taxation year, approximately $25,000;
(b)in respect of the 2019 taxation year, approximately $18,000 or $12,000; and
(c)in respect of the 2020 taxation year, approximately $28,000.

Cross-examination

[51] ts 86 - ts 87.

In cross-examination Mr Bonham-Smith accepted he lied during the search when he said he could not remember the PIN code for his phone, saying he lied because he did not want police accessing the phone.[52] He also accepted that he lied during the search when he said the handwritten lists did not record drug sales on credit, accepting that they did.[53]
[52] ts 92.
[53] ts 111.
He was cross-examined extensively about his financial position. He said that in addition to the cash from his business, he also received income by way of direct transfer to his bank account. For the 2018/2019 financial year he said the bank payments were more than $25,000 and he could not say what it was for the 2019/2020 financial year.[54]
[54] ts 94.
The cross-examination reached the point where Mr Bonham‑Smith accepted that $50,000 was approximately a fair estimate of his annual income from his own business.[55] He also accepted that there were expenses associated with running the business.[56] He was also asked about other work which he did which he described as shutdown work and said he would earn approximately $25,000 from that and he did it a number of times.[57]
[55] ts 95.
[56] ts 133.
[57] ts 96.
He was asked about his level of drug use at the time of the search. He said he believed he had been using a gram or more of methylamphetamine a day for more than a year.[58]
[58] ts 97 - ts 98.
He said he was selling a lot more than two ounces of cannabis per week to cover his methylamphetamine habit.[59] In the search, he said he was selling a couple of ounces per week maybe.
[59] ts 98.
He was asked why he would sell cannabis to source methylamphetamine and cocaine when he had, on his version of events, $21,050 in savings and he said he did not want to use his savings to buy drugs.[60]
[60] ts 101.
He said that the money he was making from cannabis sales covered his drug habit.[61]
[61] ts 104.
He was cross-examined about his evidence as to his rationing of drugs. He was asked whether when he rationed it out, that would be one day's supply in one bag. He said '[p]otentially, yeah'.[62] He was then taken to the weights of the five amounts of methylamphetamine - 1.87 g, 3.5 g, 6.52 g, 14 g and 55.6 g - and asked which amounts had been rationed out. He said the smaller amounts he would assume. He was then asked, so the 1.87 g and 3.5 g, and he said he was not sure and could not recall.[63]
[62] ts 106.
[63] ts 106.
In cross-examination, Mr Bonham-Smith said he was affected by drugs during the search. He had said at the start of the search that he was not. He said in evidence he lied to police about this.[64] Detective Brown was not asked whether he perceived Mr Bonham‑Smith to be affected by drugs during the search. In any event, from having watched the search video, Mr Bonham-Smith understood the questions being asked of him and further was able to point to errors that he thought the police had made, for example in relation to pointing out that the 55.6 g of methylamphetamine was not in the tin found under the couch.
[64] ts 121.
In relation to the 55.6 g, in cross-examination he maintained he was not aware of it, explaining that he was now of a clear mind.[65] He said the Energizer tin found under the couch was his. He was asked if the Energizer tin was under the couch and he said he did not know.[66]
[65] ts 121.
[66] ts 121.
He said he knew the bag containing the 55.6 g was not in the tin because the 55.6 g was not his.[67] He was asked if it was possible someone put that in his shed without him knowing and he said yes.[68] He then reiterated it was not his bag of drugs.[69]
[67] ts 125.
[68] ts 125.
[69] ts 126.
It was put to him in cross-examination that the 3.5 g of methylamphetamine only had a purity of 57% because he had cut it down. He denied this.[70] He was asked if he bought it like that and he said:[71]
I can't recall. Yes. I would have bought it …
[70] ts 127.
[71] ts 127.
Mr Bonham-Smith denied cutting down drugs generally because he said as a user this reduced the impact of the drugs.[72]
[72] ts 127.
He was taken to where he said in the search that it was his intention to use the cocaine when he ran out of methylamphetamine. He was asked why he would have cocaine there if he had so much methylamphetamine and he said it was from a previous time, saying there was a shortage of drugs at the time so he was using cocaine at the time as well as methylamphetamine.[73]
[73] ts 128.
He was asked why he could not sell cocaine to support his methylamphetamine habit and he said cocaine gives the same high as with methylamphetamine.[74] He then accepted he could have sold cocaine if he wanted to.[75]
[74] ts 129.
[75] ts 129.
He said he was rationing the cocaine out into his usable amounts.[76] He was asked why he had such different amounts - 5.52 g, 4.48 g, 2.88 g and 3.34 g - and he said because they were different purities.[77] This does not accord with the chemical analysis of the cocaine, which is that the purities were broadly consistent, ranging from 22% (3.34 g and 5.52 g) and 24% (2.88 g and 4.88 g).
[76] ts 129.
[77] ts 129.
Mr Bonham-Smith was asked why he was keeping the money in the lockbox with methylamphetamine and cocaine if it was from the sale of cannabis. He said there was no reason why.[78]

Re-examination

[78] ts 134.

In re-examination he was asked about the 55.6 g and said he received legal advice his prospects of success in disputing possession of the methylamphetamine were not good and that is why he pleaded guilty.[79]

Summary

[79] ts 139.

The summary I have set out above reflects the pertinent aspects of the evidence having regard to the issues I need to resolve. Mr Bonham‑Smith was also cross-examined about the silver bars and how he could afford them. However, I do not consider that issue affects the determination of what I must resolve for these proceedings except to note that the bars were there and were a potential source of funds for Mr Bonham-Smith to fund his drug habit.

Analysis of the evidence

I will start by addressing Mr Bonham-Smith's financial position and drug use.
In relation to Mr Bonham-Smith's financial position, this was very much unclear. His total legitimate earnings are unclear. During the search he said he had about $10,000 in his bank account from his work. In evidence he said in respect of some work he undertook, he was paid direct to his bank account and for his mechanics business, he was paid in cash. He accepted he would have expenses for his own business. He accepted that a figure of $50,000 per year from his business was approximately right and then he also earned money from other sources, principally the shutdown work, however he was not clear as to how often he did this. In relation to his sale of cannabis, during the search he said he was selling around a couple of ounces of cannabis a week, while in evidence he said it was a lot more than a couple of ounces per week, but he could not say how much. He was not growing cannabis, so he had to pay for it. It is not clear what his profit margin was on selling cannabis. He also had the silver bars, which I infer were a source of cash if he chose to sell them.
In terms of Mr Bonham-Smith's drug use, I accept he was a drug addict. However, it is difficult to assess the extent of his addiction. In the search he initially said he was a bit of an addict, but then later said he was a heavy addict, smoking in excess of a gram of methamphetamine a day and smoking around 2 ounces of cannabis per week. In his evidence, he maintained he was a heavy user, saying that for the year prior to the search he was using a gram or more a day. Given the broad variations in what he said, it is difficult to assess his overall drug use. If he was using a gram or more a day, that equates to at least 7 g per week. How much that would cost very much depends on the quantities in which it was bought and when. Also, it is not clear how his use of cannabis and methylamphetamine affected the other. So that is, if the use of one increased, what effect that had on his use of the other drug.
In terms of the price of drugs, Detective Brown's evidence really reflects an average of prices for the drugs as at August 2020. It cannot reflect the price at which Mr Bonham-Smith purchased the drugs found in his possession, as that would depend on when the drugs were purchased and the quantities in which they were purchased. It does however reflect that the drugs in Mr Bonham-Smith's possession were valuable.
It seems to me taking all these matters into account there was a prospect that Mr Bonham-Smith could fund his methylamphetamine and cocaine use from his work and cannabis sales, however that prospect depends on many factors about which his evidence is either vague or inconsistent.
In assessing Mr Bonham‑Smith's evidence and his account in the search as to the principal issues for determination, defence counsel emphasised Mr Bonham-Smith's demeanour as reflecting someone being frank in accepting what he had done and therefore supports the credibility of his evidence. Mr Bonham-Smith's demeanour was largely that of someone quite distressed at the position he was in. This could be consistent with him being frank, or with him struggling to accept full responsibility for the gravity of his behaviour. Also, demeanour, to the extent it is of any significance, should not be viewed in isolation.[80] Here, I think more important considerations are the consistency of Mr Bonham‑Smith's account of events, its plausibility and the lies he has told.
[80] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [30] - [31].
Defence counsel also pointed to the indicia of drug dealing present in the shed as being consistent with Mr Bonham-Smith only selling cannabis. I consider it is consistent with him selling drugs. What I need to do is determine what drugs I am satisfied beyond reasonable doubt that he was selling.
Mr Bonham-Smith has accepted that he lied when he told police that he did not remember the PIN code for his phone. He also accepts he lied when he told police that the lists of names and numbers found in the shed did not relate to drug sales.
His explanation of the extent of his drug use changed from being a bit of a drug addict, to being a heavy addict once all the drugs had been found. He said in the search that the $17,885 was from legitimate sources, however in evidence he said it was from cannabis sales.
He also was not truthful when he said during the search, prior to police finding the tin under the couch, that he was not aware of any other drugs in the shed. The tin contained methylamphetamine and cocaine. In his evidence he said he knew what was in the tin.
I consider his explanation that he was rationing the methylamphetamine across a number of different bags so as to control his drug use is implausible. The relevant quantities are 1.87 g, 3.5 g, 6.52 g and 14 g (putting aside the larger package of 55.6 g). None of those amounts accord with use of 1 g per day. When he was challenged on this in cross-examination, he could not explain how the amounts of methylamphetamine in the bags reflected his drug use.
Those amounts all accord broadly with amounts in which drugs are sold, so 1.75 g, 3.5 g, 7 g and 14 g. Also, Mr Bonham-Smith said in evidence that he had bought the 3.5 g separately, which is not consistent with that being as a result of him rationing his drugs out into separate amounts.
In relation to the cocaine, his explanation for there being different amounts in different bags was they had different purity. However, the purity was broadly consistent, ranging from 22% to 24%.
In relation to the cash of $17,885 being in the lockbox together with the methylamphetamine and cocaine, it was submitted on Mr Bonham‑ Smith's behalf that the cash and drugs were not connected but were only there together because the lockbox was a secure place to store valuable items. However, Mr Bonham‑Smith said in evidence that he could not explain why that cash was there together with those drugs. Also, the cash of $21,050 sealed in Cryovac in a hessian bag was on the couch in the shed, so was not held securely.
I consider it is implausible that Mr Bonham‑Smith would only sell cannabis, but not cocaine or methylamphetamine. On his evidence, he was a heavy user of cannabis and methylamphetamine, and only used cocaine when he ran out of other drugs. On this scenario, there is no plausible reason why he would only sell cannabis.
In relation to the messages on his phone, one of the messages is:
Hey bro how are you? Have you got Charlie atm? Is it decent?
I am satisfied this must be a reference to cocaine. The clear inference from the message is that Mr Bonham-Smith has previously supplied the person with cocaine. The message was sent on the morning of the search. It therefore does not arise in a social setting involving Mr Bonham‑Smith being with friends and willing to shout someone cocaine. Overall, the message is inconsistent with Mr Bonham-Smith's evidence that he only made cocaine available to friends in a social setting.

In relation to the 55.6 g parcel, Mr Bonham-Smith attributed his change in position from what he said during the search compared to his evidence in court, to him being under the influence of drugs during the search, while having a clear head when giving evidence. I do not regard this a plausible explanation. He said at the start of the search he was not affected by drugs. Further, my assessment of him during the search is that he was able to understand and respond to the questions asked of him.
Furthermore, I consider what Mr Bonham-Smith said during the search reflects that he was aware of the parcel of 55.6 g and by saying he was going to smoke all of it, he was seeking to downplay the significance of those drugs. If he was not aware of the drugs, he could have maintained his initial position of saying no comment, or he could have denied knowing they were there. Instead, he gave an explanation which accepted he was aware of the 55.6 g parcel of drugs. Also, the parcel was situated next to the tin and it is implausible that Mr Bonham-Smith would be aware of the tin and its contents, yet not be aware of a relatively large parcel of drugs next to the tin.
When I have regard to the lies Mr Bonham-Smith told during the search, and also the inconsistency and implausibility of his explanations regarding the drugs and money found in the shed, I reject his evidence and account during the search to the effect that:
(a)he had not sold methylamphetamine or cocaine.
(b)he did not intend to sell any of the methylamphetamine the subject of count 1.
(c)he did not intend to sell any of the cocaine the subject of count 2.
(d)the $21,050 in the hessian bag was from legitimate sources related to his work activities.
(e)he was not aware the parcel of 55.6 g was under the couch.
Having rejected Mr Bonham‑Smith's evidence and account during the search, I put that to one side. I now need to assess whether or not the only reasonable inference on the evidence I do accept is that he intended to sell some of the methylamphetamine and the cocaine the subject of counts 1 and 2 respectively.
I consider each of these counts separately although, in my view, the evidence on each is cross‑admissible on the other to the extent of establishing that at the point in time of the search Mr Bonham‑Smith was carrying out drug-dealing activity.
In my view, on the evidence, the only reasonable inference is that at the time of the search Mr Bonham‑Smith was actively engaged in selling methylamphetamine and also cocaine. Not only were significant amounts of methylamphetamine and cocaine found, they were found together with large sums of cash, and also in the shed there were other items associated with drug dealing, in particular tick lists, numerous clip seal bags and three sets of digital scales. Also, methylamphetamine and cocaine were located in the lockbox together with a significant sum of cash. And the methylamphetamine was packaged in weights broadly approximate with the weights in which it is usually sold.
In relation to the 55.6 g parcel, I am satisfied the only reasonable inference is that Mr Bonham-Smith had possession of the parcel of 55.6 g for his drug-dealing activities and for his own use. The parcel was found under the couch, in his shed, next to his tin and during the search his answers reflected an awareness of it being there. In coming to this view, I have considered whether there is a competing reasonable inference open that Mr Bonham‑Smith was in effect warehousing the 55.6 grams for another person. However, on the evidence I consider that is mere conjecture.[81]
[81] See R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 [47].
Having made these findings, I turn then to consider Mr Bonham‑Smith's intent in relation to count 1. In making an assessment, I have regard to the total amount of methylamphetamine that was found, Mr Bonham‑Smith's own drug use, and that at the point in time of the search he was engaged in drug-dealing activity. Having regard to the totality of these matters I am satisfied the only reasonable inference is that he intended to sell the majority of the methylamphetamine that was there. I am satisfied that he would have used a not insignificant proportion of it, however given that there was in total 81.49 g, I am satisfied the only reasonable inference is that he intended to sell the majority of it. He also would have supplied a small amount to friends in a social setting.
In relation to count 2, again I take account of the quantity of cocaine, Mr Bonham-Smith's own drug use and at the point in time of the search he was engaged in drug-dealing activity. I am satisfied that the use of cocaine for Mr Bonham-Smith was more incidental, rather than it being the predominant drug that he was using. In total, there was 16.62 g of cocaine. I am satisfied the only reasonable inference is that he intended to sell the majority of this, would have used some of it, and supplied a small amount to friends in a social setting.
In relation to the cash in the hessian bag, given the amount, how it was wrapped and that it was in the shed with the drugs and the other indicia of drug dealing, I am satisfied beyond reasonable doubt that there is a reasonable suspicion it was from the sale of drugs. Further, given my findings set out above, Mr Bonham‑Smith has not satisfied me on the balance of probabilities that all or any of the money in that parcel was from his work activities.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Judge Lemonis
22 DECEMBER 2022