The State of Western Australia v Cotte - [2020] WADC 47

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- COTTE [2020] WADC 47
CORAM:   TROY DCJ
HEARD:   17 MARCH 2020
DELIVERED          :   Ex tempore
PUBLISHED           :   16 APRIL 2020
FILE NO/S:   IND 1015 of 2019
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
MICHAEL PETER COTTE

Catchwords:

Factual basis for sentence - Propensity evidence - Cross‑examination on bad character in trial of issues - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 8 and s 31A
Sentencing Act 1995 (WA), s 15

Result:

The accused to be sentenced on the basis contended for the State on count 1

On counts 4 and 5 the accused is to be sentenced on the basis that he was in possession of these drugs with an intention to sell or supply at least some of them

Representation:

Counsel:

The State of Western Australia	:	Mr L N Gabriel
Accused	:	Mr I D Hope

Solicitors:

The State of Western Australia	:	The State Director of Public Prosecutions
Accused	:	Ian Hope Barristers & Solicitors

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

Bees v The State of Western Australia [2017] WASCA 202
Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419
Flessas v The State of Western Australia [2018] WASCA 210
Gray v The State of Western Australia [2015] WASCA 108
Kenworthy v The Queen [No 2] [2016] WASCA 207
La Bianca v The State of Western Australia [2019] WASCA 105
NTH v The State of Western Australia [2020] WASCA 22
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
R v Falzon (2018) 264 CLR 361
R v Sultana (1994) 74 A Crim R 27
Shepherd v The Queen (1990) 170 CLR 573
Strbak v The Queen [2020] HCA 10
Tran v The State of Western Australia [2019] WASCA 50

TROY DCJ:

[This decision was delivered extemporaneously on 20 March 2020 and edited from the transcript.]

Introduction

On 29 August 2019 Mr Cotte was convicted on his guilty pleas of all eight counts on indictment 1015 of 2019. Mr Cotte advanced a basis of plea upon counts 1, 4 and 5 that was controversial. Accordingly, a trial of issues occurred on 17 March 2020.
As the High Court recently pointed out,[1] a plea of guilty is a formal admission of each of the legal ingredients of the offence. Further, that (in this case) the offence of possessing a controlled drug with intent to sell or supply may be committed in a wide range of circumstances of varying implications as to culpability. Accordingly, Mr Cotte's pleas of guilty to counts 1, 4 and 5 did not relieve the prosecution of the obligation to prove the facts of its primary case without assistance from him. Nonetheless, Mr Cotte gave evidence after the State had tendered the prosecution brief as a whole, without objection, and called the drug expert Detective Senior Constable Joshua Bender.
[1] Strbak v The Queen [2020] HCA 10.

Summary of facts

In relation to counts 1, 2 and 3, at 8.20 pm on 25 April 2018 police executed a Misuse of Drugs Act 1981 (WA) search warrant at Mr Cotte's residence in Bibra Lake. Mr Cotte was present at the time. Police located a small black Adidas bag on a dining room chair which contained a small blue bag, which in turn contained 13 clipseal bags. The largest clipseal bag contained 19.6 g of methylamphetamine with a purity of 79%. There were a total of eight clipseal bags which contained approximately 3.5 g of methylamphetamine, otherwise known as an 'eight ball'. There were also four bags with smaller quantities totalling 3.49 g. The total amount of methylamphetamine on count 1 on the indictment was 51.24 g. The purity ranged from 75% ‑ 81%.
Based on Detective Bender's evidence the total value, applying his estimate of the cost of an ounce to the 19.6 g and the cost of 3.5 g to the eight bags of that quantity and the four smaller bags of the drugs in Mr Cotte's possession on count 1 were worth $9,608 - $13,695. If those drugs were sold in consignments of 1 g at $400 per gram the potential value increases to $20,650.
Mr Cotte accepts possession of that quantity of methylamphetamine, but through his counsel's helpfully detailed written communication of 27 August 2019 asserts that, in accordance with his established practice, he would have sold 3.5 g of it. He would have returned the remaining approximately 48 g to the true owner. So, on Mr Cotte's case there was possession with an intent to sell of 3.5 g and possession with an intent to supply of some 47.74 g, in the sense of returning it to the true owner.
Applying the reasoning of the Court of Appeal[2] a finding, as contended by the State, that Mr Cotte intended to sell most of this 51.24 g for 'commercial profit' is an aggravating circumstance for sentencing purposes. The onus is on the prosecution to prove that circumstance beyond reasonable doubt. It is not open to me to make the finding by inference unless the inferred finding is the only reasonable inference open on the material before me.
[2] Tran v The State of Western Australia [2019] WASCA 50; Bees v The State of Western Australia [2017] WASCA 202 [55].
Police also found $790 in cash in Mr Cotte's wallet - count 3 on the indictment and 278.1 g cannabis - count 2.
As well as digital scales and numerous unused clipseal bags, police also located a set of knuckledusters, two nunchucks, an extendable baton and three throwing knives in the main bedroom. Some of these items are photographed.[3]
[3] Prosecution brief (PB) 119.
The offences which give rise to counts 4 ‑ 8 on the indictment were committed on 8 November 2018 whilst Mr Cotte was on bail. Detectives from the Organised Crime Squad executed a Misuse of Drugs Act search warrant at Mr Cotte's residence in Gosnells. Mr Cotte was present at the time.
Police located firstly in Mr Cotte's bedroom, 28.2 g of methylamphetamine with a purity of 77% giving rise to count 8. Police also located 33.92 g of cannabis in Mr Cotte's jacket - count 6. Police located $1,915 in cash in Mr Cotte's wallet - count 7.
Relevant to this trial of issues, police found in Mr Cotte's trouser pocket three clipseal bags, two of which contained respectively 3.62 g and 3.97 g of MDMA (a total of 7.59 g) at a purity of 85% - 86% - count 4 on the indictment. The third bag contained 1.66 g of heroin - count 5 on the indictment. Mr Cotte's position was that his drug supplier at the time had dropped these bags in his driveway the previous evening. Mr Cotte had recovered them and intended to return them to the true owner. Again, he therefore possessed each drug with intent to supply in that sense.
Again, the finding as contended by the State that Mr Cotte intended to sell these two types of drugs for 'commercial profit' is an aggravating circumstance for sentencing purposes. The onus was on the prosecution to prove that circumstance beyond reasonable doubt. It is not open to me to make the finding by inference unless the inferred finding was the only reasonable inference open on the material before me.
Again, applying Detective Bender's evidence the MDMA was worth about $750 and the heroin about $900.

Circumstantial evidence

The State's burden, as I have identified it, rests on the acceptance of circumstantial evidence. I cannot find the version of events contended for by the State in respect of either count 1 or in respect of counts 4 and 5 to be proved beyond reasonable doubt, unless the circumstances are such as to be inconsistent with any reasonable alternative rational explanation other than Mr Cotte's criminal culpability being as contended for by the State.
For an inference to be reasonable, it must rest upon something more than mere conjecture. Given the burden and standard of proof in this trial of issue, it is necessary not only that this should be a rational inference but that it is be the only reasonable and rational inference that the circumstances enable me to draw.
I must decide whether I accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence. Once I have come to a view as to all the facts established by the evidence, I must then consider what, if any, inferences I can draw from the facts. Similarly, I must consider all the evidence and facts as a whole in deciding whether there is a rational or reasonable inference, open on the evidence, consistent with Mr Cotte's criminal culpability being as he contends.[4]
[4] Kenworthy v The Queen [No 2] [2016] WASCA 207 [18].
The bare possibility of Mr Cotte's criminal culpability being as he contends should not prevent me from finding to the contrary, if the inference advanced by the State that his criminal culpability is as they contend, if that is the only inference open to a reasonable person upon a consideration of all the facts in evidence. If, however, there is a rational or reasonable inference open on all evidence, consistent with Mr Cotte's version, then I must not draw the inference contended for by the State.[5]
[5] Shepherd v The Queen (1990) 170 CLR 573, 578.
In terms, does the reasonable possibility exist that in each case Mr Cotte was looking after or temporarily holding the drugs on behalf of the true owner?
In considering a circumstantial case, I must consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with Mr Cotte's version reasonably open on the evidence. I must not look at the evidence in a piecemeal fashion. It is possible to draw an inference in favour of the State from a combination of facts, none of which viewed alone would support that inference.
I must examine any inference or deduction that I draw. I must see whether it is logical and reasonable. I must ask myself whether there are any other explanations that common sense and human experience tell me are not fanciful.
It is well settled that circumstantial evidence is no less valid or cogent than direct evidence.

Propensity evidence

During the hearing I permitted the prosecution to adduce as propensity evidence, under s 31A of the Evidence Act1906 (WA), Mr Cotte's previous sentences in this court for drug offending between August 2005 and July 2013 as set out in the various sentencing transcripts.[6] Specifically his appearances on 9 December 2005, 4 December 2007 and 31 October 2014.
[6] PB 169 ‑ 206.
Quite recently[7] the Court of Appeal reiterated the principles that govern the admissibility of such evidence.
[7] NTH v The State of Western Australia [2020] WASCA 22 [108] - [109].
In assessing whether evidence has significant probative value, the evidence is to be taken at its highest from the perspective of the prosecution.
'Propensity evidence', has a broad connotation. The word 'conduct', in this context, refers to the manner in which the accused person behaves or has behaved.
In determining whether propensity evidence would have significant probative value, the propensity evidence is not to be viewed in isolation. I am required to consider whether, having regard to other evidence adduced or to be adduced, the propensity evidence would have significant probative value.
Evidence has 'probative value' if the evidence could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue, here the reason for Mr Cotte to be in possession of the drugs giving rise to counts 1, 4 and 5.
I must consider (that is, think) that the propensity evidence 'would' (as distinct from could), either by itself or having regard to other evidence adduced or to be adduced, rationally affect, to a significant extent, the assessment of the probability of the existence of a fact in issue. The adjective 'significant' connotes important or of consequence.
Whether the probative value is 'significant' will depend upon the nature of the fact in issue to which it is relevant, and the significance or importance which the propensity evidence, either by itself or having regard to other evidence adduced or to be adduced, has in proving that fact. A high level of generality of an alleged propensity can affect the extent of the probative force of the propensity evidence. The more specific the alleged similarity the more likely it is that the propensity evidence will have significant probative value.
Even where a propensity is identified at a high level of generality, it is necessary to examine the proposed propensity evidence in detail in the course of determining whether it is properly characterised as having significant probative value.
The nature and extent of any similarity between the conduct the subject of the propensity evidence and the conduct the subject of the charged act(s) is relevant to whether the evidence has significant probative value.
An assessment of the probative value of propensity evidence requires the court to determine the extent to which:
(a)the evidence is capable of proving the propensity; and
(b)proof of the propensity increases the likelihood of the commission of the offences.
Evaluation of the extent of the probative value of propensity evidence requires identification of the purpose for which the propensity evidence is admitted; in other words, the 'work the propensity evidence is tendered to do'. For example, propensity evidence may be adduced in order to prove the commission of a crime or prove a mental element of an act, which act itself may or may not be proven.
A prior conviction or convictions for drug dealing will very often have significant probative value on a later charge or charges of drug dealing because, as put by Martin CJ,[8] it points to a disposition of the accused which could have had an influence upon his behaviour at the time of the current alleged offences.
[8] Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419 [34].
Evidence of prior convictions also negates possible defences, such as an innocent explanation proffered by the accused:[9]
[9] Bennett [35] and La Bianca v The State of Western Australia [2019] WASCA 105 [39].
In Flessas v The State of Western Australia[10] the State at trial were permitted to adduce evidence of the accused's prior drug dealing conviction to show his propensity to be in possession of and to distribute prohibited drugs for commercial gain and to rebut any innocent explanation for his possession of large amounts of cash. On appeal the court held that the propensity evidence cogently established a propensity to engage in the possession and commercial distribution of methylamphetamine. That propensity increased significantly the likelihood that the accused committed the alleged offences.[11]
[10] Flessas v The State of Western Australia [2018] WASCA 210 (Buss P, Mazza & Beech JJA).
[11] Flessasv The State of Western Australia [47].
The court held[12] that although the objective criminality associated with the alleged current offences was greater than the objective criminality associated with the prior offence, that factor did not diminish the importance of the propensity evidence. The objective criminality associated with the prior offence was substantial. There was a substantial and rational connection between the conduct the subject of the prior offence and the conduct the subject of the alleged current offences.
[12] Flessas v The State of Western Australia [52] ‑ [56].
Propensity evidence has been held admissible in drug cases notwithstanding a lengthy interval between prior conduct and the alleged offence: see Preston v The State of Western Australia[13] (where the interval was 10 years) and Bennett v The State of Western Australia[14] (which it was 12 ‑ 16 years). In Flessas the interval between the commission of the prior offence and the commission of the alleged current offences (6 years 4 months) was held not to deprive the propensity evidence of significant probative value. The significance of the interval between the periods of offending is a matter of weight for the jury: Preston,[15] or in the case of a trial of issue, the judicial officer.
[13] Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347.
[14] Bennett v The State of Western Australia.
[15] Preston v The State of Western Australia [57].
I am entirely satisfied that all of Mr Cotte's prior offending in respect of methylamphetamine and unlawful possession of cash is propensity evidence, is of significant probative value and is not rendered inadmissible.[16]
[16] Section 31A(2)(b).
With regard to count 1 the State rely on the following matters in combination. The defence submit that they lack the requisite force even when taken as a whole.

Relevance of propensity evidence to count 1

Mr Cotte's prior convictions in the period 2005 - 2013 for selling and supplying methylamphetamine. On all of those prior occasions the quantity of methylamphetamine in his possession was significantly greater than 3.5 g. Also, he possessed significant quantities of cash, including on one occasion $6,800.
In August 2005 Mr Cotte was in possession with intent of 9.18 g of methylamphetamine[17] and in unlawful possession of $5,289.75 in cash. In his evidence before me Mr Cotte said it was given to him by his mother's husband at the time to buy a car.[18] When he was sentenced his then counsel stated[19] that this cash was Mr Cotte's total sum of his 'asset worth' which he did not wish to keep in the bank. Counsel made no reference to a car.
[17] PB 171.
[18] ts 54.
[19] PB 184.
In August 2007 Mr Cotte was in possession with intent of 7.6 g of methylamphetamine and in unlawful possession of $5,015.[20] Before me, Mr Cotte was asked in cross-examination if that $5,015 in cash was the proceeds of selling drugs and responded, 'Maybe, yeah'.
[20] PB 192.
In September 2007 Mr Cotte was in possession with intent of 12.6 g of methylamphetamine.[21]
[21] PB 193.
In March 2013 police stopped Mr Cotte in a car driving another drug dealer, Ms Juanita Adams, around. Police found 17.6 g of methylamphetamine in the car and $6,250 on Ms Adams.[22]
[22] PB 202.
Four months later, on 25 July 2013, police stopped Mr Cotte and Ms Adams again. Police located 13.3 g of methylamphetamine in the car and $6,720 in cash.[23]
[23] PB 203.
Borrowing from the language used by Martin CJ in Bennett, the evidence of Mr Cotte's prior possession of methylamphetamine with intent to sell or supply in quantities of up to 17.6 g and of proportionate quantities of cash, was capable of sustaining an inference that Mr Cotte was, as of April 2018, a habitual methylamphetamine dealer in quantities appreciably greater than 3.5 g, who had adopted that vocation in life. That conclusion, which I unhesitatingly draw, is of significant probative value in deciding whether it was Mr Cotte, as opposed to the person who left his house at 4.57 pm on 25 April 2018, who was the true owner of the 51.4 g of methylamphetamine. The only qualification is that the 51.4 g is a significantly greater quantity than any quantity that Mr Cotte has demonstrably possessed in the past.

Relevance of conduct in count 8 to count 1

Just over six months later, on Mr Cotte's own case the 'true owner' of the 28.2 g of methylamphetamine with a purity of 77% giving rise to count 8 trusted Mr Cotte to sell that ounce of methylamphetamine. He was permitted to keep any profit over $4,500. I accept that this shows that Mr Cotte thus had a demonstrated ability to sell far greater quantities than 3.5 g.

The innate implausibility of Mr Cotte's account

The State rely on the innate implausibility of Mr Cotte's account. Mr Cotte testified that, 'just before the police had got there, another acquaintance, a friend of mine had showed up'. He is the person photographed at the bottom of PB 358. He weighed some bags (of drugs) on Mr Cotte's kitchen table. Mr Cotte said that, 'not long after that, he received a phone call and he told me he had to duck out for a while and he'd be back in half an hour'.[24]
[24] ts 32.

My understanding of Mr Cotte's evidence[25] was that the supplier was going to give one of the bags which contained 3.5 g to Mr Cotte who would then sell it on behalf of the supplier. He would have kept a small quantity for himself as well as a small amount of cash, if there was some surplus, and returned the sale price to the supplier. The supplier would then retain possession of all the rest of his drugs. It was not clear when this arrangement was made, that is, was it before the supplier arrived, when he was in the house or whether this was what was always done.
[25] ts 34 - ts 35.
Mr Cotte testified that he took all the bags that the supplier had weighed, took them off the kitchen table and put them into his bumbag.[26]
[26] ts 33.
Mr Cotte said that the $790 in his wallet was money he was going to give to this man arising out of sales Mr Cotte had made on his behalf. Mr Cotte did not explain why he did not give his supplier the $790 in the 43 minutes that he was in his house. Particularly as that was the reason for the man's attendance.[27]
[27] ts 39.
In cross‑examination Mr Cotte said that:[28]
Not long after that he got a phone call to meet someone around the corner or whatever. I don't know where he was going. And he told me he'd be back in half an hour if he could leave that there. I didn't really see that much of a problem with it. There was other people in the house so I grabbed it all and put it in my bumbag.
[28] ts 38.
There were three others in the house on Mr Cotte's arrest including the person referred to in evidence, Kristin Bergroth.[29]
[29] ts 38.
Mr Cotte accepted that he had known this man for some time but that he had never left a quantity such as 51.24 g at his house before for Mr Cotte to keep safe for him. So, on the single occasion that Mr Cotte provided this service, heavily armed police executed a search warrant three and half hours later, before the true owner returned. The coincidence is remarkable.
Further, the supplier was seemingly content to leave several thousand dollars worth of drugs on a kitchen table and to have remained away for three and half hours prior to the police raid. He would have left the drugs in a house occupied at the time by four people and with a large number of visitors.
Mr Hope contends that if Mr Cotte had an intention to sell this consignment of drugs one might think that there would be more motivation to secure the drugs, so that the lack of security tells against the prosecution hypothesis. Of course if they were Mr Cotte's drugs they were in his own house, albeit unsecured, at a time when Mr Cotte was there. As distinct from leaving them at someone else's house, that person being addicted to drugs and with a large number of visitors attending for the purpose of buying drugs. Whilst human experience might, as Mr Hope submits, suggest any number of reasons why a person may be delayed, including simply having a beer with a friend, I do not accept that would apply to a person leaving several thousand dollars worth of drugs at a particular person's house for the first time.
When asked about whether in light of the fact that the CCTV still photographs showed that this person was away from the premises for nearly three and a half hours if it ever occurred to him that the person had been gone for quite some time, Mr Cotte responded:[30]
No, it didn't. I actually didn't know he was gone for that long.
He accepted that he did not make any attempt to call this man to see where he might be on the basis that:
he told me he was coming back he would come back.
[30] ts 60 ‑ ts 61.
This was the first occasion, on Mr Cotte's account, that this man had left such a large quantity of drugs behind. Further on any view there is a significant difference between half an hour and three and a half hours. Mr Cotte's professed insouciance about the supplier's extended absence is wholly unconvincing.

Possession of cash

Mr Cotte possessed $790 and $1,915 on the two occasions when he was arrested. He accepted that $1,415 of $1,915 was from sale of drugs. Viewed in isolation the possession of $1,915 in November 2018 permits the inference that this was all money from the sale of drugs. The cost of 12 g of methylamphetamine is, on Detective Bender's evidence, approximately $1,915.

CCTV

Mr Cotte had a sophisticated CCTV system installed at his house so as to monitor people coming to his house. I am satisfied that the reason for this precaution was that Mr Cotte was involved in dealing methylamphetamine on an ongoing and regular basis in quantities that exceeded 3.5 g.

Drug dealing immediately prior to the police raid

The State relied upon the extent of Mr Cotte's drug dealing in the 48 hours prior to the police raid as illustrated by the sheer number of people who arrived in that period by reference to the still photographs[31] taken from the security camera, the brevity of their visits and the fact that in a number of instances they did not come inside.
[31] PB 322 ‑ 362.
Mr Cotte accepted that he has supplied drugs, albeit he contends relatively small quantities, to at least some of the people captured on this camera for this period. The defence position is that whilst the number of visitors in the circumstances circumstantially supports the contention that Mr Cotte was a drug dealer at the time, so much is uncontroversial. What is in controversy is the extent of Mr Cotte's drug dealings. The defence position is that the number of visitors in these circumstances cannot inform one of the amount of drugs they may have been purchasing at this time. That is true, but the sheer number of purchasers suggest that Mr Cotte's stock‑in‑trade must have been significant. Against that, I accept that no large amounts of cash were found nor was there a tick list recording credit sales.

Deletion of text messages

On each occasion Mr Cotte possessed two mobile phones all of which had little or no text messages on them. That was because of Mr Cotte's acknowledged practice of deleting his text messages, in particular using the application Wickr. He did not accept it was purely because he would incriminate himself. Detective Bender testified that it is not uncommon to find little to no text messages on the mobile phone of a person engaged in drug dealing, because, understandably, they wish to essentially hide their activities. Mr Hope submits that does not demonstrate a tendency to sell at a much higher level as represented by count 1. I accept that contention.

Possession of weapons

As well as digital scales and numerous unused clipseal bags, police also located[32] a set of knuckledusters, two nunchucks, an extendable baton and three throwing knives in the main bedroom. Some of these items are photographed.[33]
[32] PB 43.
[33] PB 119.
Mr Cotte testified that he has collected weapons for 20 ‑ 25 years and he had a whole room full of them; they were all displayed as collectables.[34] He stated in cross‑examination that the attending police officers actually admired his collection.[35] The proposition that heavily armed police officers executing a Misuse of Drugs search warrant at the premises of a known drug dealer would document and seize certain weapons but admire and leave behind other weapons is wholly implausible.
[34] ts 58.
[35] ts 81.
In R v Falzon[36] the High Court reaffirmed the orthodoxy of R v Sultana[37] that possession of firearms (and it is clear weapons generally) is circumstantial evidence which, in conjunction with the fact of possession and, possibly, other evidence, may find an inference that an accused was engaged in the business of selling drugs, and that is so notwithstanding that such evidence may also be indicative of a tendency towards crime.
[36] R v Falzon (2018) 264 CLR 361.
[37] R v Sultana (1994) 74 A Crim R 27.
I am quite satisfied that the fact that the weapons were simply lying on a bed is inconsistent with them being part of a collection. Rather, it is consistent with them being readily accessible to Mr Cotte for use in his drug dealing activities, especially given the large volume of people coming to and from his house for drug-related transactions. In my view, like the CCTV, they suggest drug dealing to an extent significantly beyond sales limited to 3.5 g. Criminals are more likely to resort to violence to steal larger quantities of drugs then they would with 3.5 g. Weapons such as these are a useful deterrent and protective mechanism.

Mr Cotte's credibility

The State urge me to reject Mr Cotte's account and submit that as a witness he lacked any credibility. For Mr Cotte, Mr Hope submits that I should take into account what is said to be his frankness in relation to the basis of plea for the other counts on indictment to which the State did not require a trial of issues. Mr Hope suggests that the number of 3.5 g bags making up count 1 is strong corroboration of Mr Cotte's account of events, that namely an arrangement that Mr Cotte would on‑sell 3.5 g. In that respect I am entitled to apply the reasoning approved in Gray v The State of Western Australia.[38] The possibility always exists that an accused has tailored their evidence to fit everything that they are aware of from the prosecution brief. So to observe does not violate the right to silence.
[38] Gray v The State of Western Australia [2015] WASCA 108.
I did not find Mr Cotte to be a credible witness. I permitted the State, over objection, to cross-examine Mr Cotte on his previous convictions for attempting to pervert the course of justice and perjury. I am satisfied that s 8 of the Evidence Act does not apply in a trial of issues to cross‑examination on bad character. That view is consistent, in my opinion, with the terms of s 15 of the Sentencing Act 1995 (WA).
In 1990, as a 19-year-old, Mr Cotte deliberately lied on oath when on trial and was convicted and sentenced to imprisonment for perjury. Notwithstanding that, early in his evidence before me,[39] Mr Cotte was asked, 'this is the first time you've ever given evidence?' and answered 'yes'. I am invited to consider whether the experience of previously giving evidence was lost from Mr Cotte's consciousness when he embarked on giving evidence, in light of his chronic history of anxiety.
[39] ts 31.
Mr Cotte did not appear to me to find giving evidence a nerve racking process. Rather he was somewhat belligerent and truculent even in examination‑in‑chief:[40]
Q:Can you tell the court something about the person depicted on that photograph?
A:Well, in all honesty, look, I shouldn't have to. I just told you there was a person that come around prior to the police coming around.
[40] PB 358, ts 32 - ts 33.
This continued in cross‑examination:[41]
A:What do I need to look at this again for?
And:[42]
You asked me this question already and I've answered it.
[41] ts 41.
[42] ts 49.
Mr Cotte often interrupted counsel.[43] I found Mr Cotte to be evasive. He was asked:[44]
… the Wickr application was found on the mobile phone seized from your house on 25 April, was it not? and answered 'It may have been, yeah …'
[43] For example at ts 53.
[44] ts 68.
Mr Cotte on occasions denied any criminality for past offences despite having pleaded guilty as illustrated by this passage of evidence:
GABRIEL MR:          Mr Cotte, as his Honour has just mentioned, you were convicted in July of 1991 along with your brother, Mr Kevin Cotte, of perjuring yourself, as well as attempting to pervert the course of justice?
THE ACCUSED:        Yes. That was the charge, yes.
GABRIEL, MR:         And you pleaded guilty to both of those charges?
THE ACCUSED:        Well, I was - I was - my brother was 18, I was 19, okay.
TROY DCJ:Is the answer to that question, 'Yes'?
THE ACCUSED:        On what?
TROY DCJ:Is the answer to that question, 'Yes'?
THE ACCUSED:        What was the question again?
GABRIEL, MR:         You pleaded guilty in 1991 to the charges of perjury and attempting to pervert the course?
THE ACCUSED:        We were put in this situation where we had no choice. If you want to really know the story I'll tell you.
GABRIEL, MR:         But you pleaded guilty to both those offences?
THE ACCUSED:        Well, of course I did, and I was told I was - I wouldn't go to gaol for it. That's the only reason I pleaded guilty.
Mr Cotte observed in cross-examination:[45]
We're going back a lot, when I was 19 years of age. They put me in Fremantle, the most - you know, WA's most notorious prison for a fucking lie.
[45] ts 80.
In re-examination he was asked:[46]
Q:and I asked you near the outset of your evidence, whether you had given evidence before, and you indicated that you hadn't. When you said that, had you in mind the 1991 matter?
A:No, it didn't even come to my mind.
There is an obvious disjunct between Mr Cotte's evidence in that regard.
[46] ts 80.
In light of the perjury conviction, which Mr Cotte would have me go behind, I have the greatest of hesitation in accepting Mr Cotte's account on any matters of controversy.

Conclusion on basis of sentence on count 1

After considering and weighing all of the circumstances established by the evidence in combination I am satisfied that the State have excluded Mr Cotte's version beyond reasonable doubt.
Put another way, I am satisfied beyond reasonable doubt that Mr Cotte in possessing the 51.24 g of methylamphetamine, count 1 on the indictment, had an intent to sell the vast majority of those drugs for commercial gain. Some of those drugs, I accept, he may well have consumed himself.

Consideration of basis of sentence on counts 4 and 5

With regard to counts 4 and 5 the State rely on the following matters in combination.

Prior convictions

On 3 November 2004, Mr Cotte was in possession of 74 dexamphetamine tablets, total weight 14.8 g, found during a search of his house. Mr Cotte pleaded guilty to possession of these tablets with intent to sell or supply.[47] I do not regard that conduct as having the requisite significant probative value and I exclude it from my mind when I consider the dispute concerning counts 4 and 5.
[47] PB 170 ‑ 172.
The admissible propensity evidence that I have previously described clearly establishes that Mr Cotte is an entrenched methamphetamine dealer. It does not demonstrate that he was an entrenched dealer of MDMA and it does not demonstrate that he was a dealer in heroin, or indeed a user of heroin, at all.

The innate implausibility of Mr Cotte's account

Again the State rely on the innate implausibility of Mr Cotte's account. Mr Cotte stated that he found these drugs on his driveway on the edge of the lawn after 'a particular person left'. He testified that this person was also a dealer but a different dealer to the person he claimed to be the true owner of the drugs on count 1.[48] The defence submit that Mr Cotte's account that he came across those drugs at night when they were inadvertently dropped, almost certainly by the dealer, is entirely plausible, as is his contention that he retained the drugs to be returned to the dealer.
[48] ts 36.
Mr Cotte said that this person was there the night before. The police came the morning after. He said it was dark, and he had only seen these bags because of his headlights. He surmised that if anyone dropped those, it would have been the dealer who had left. He did not know at the time that they were the dealer's, but he did later point out that they were his. He was going to give them back to him.[49]
[49] ts 36.
Under cross-examination Mr Cotte said:[50]
my headlights caught it. So it was actually on the edge of my grass and the driveway. So I only just managed to see it.
[50] ts 61.
He said he kept these drugs in his trouser pockets all night while asleep. They were still, therefore, in his pocket in the morning when the police raided his house.

Financial position at the time

The State also note that Mr Cotte, by the basis of his plea to count 8, accepted that in November 2018, he owed a significant debt to his supplier. He had other debts.[51] He had a significant and longstanding drug addiction which, plainly, as he accepted, he could only finance through drug dealing.[52] Given the evidence that the cost of a point of methylamphetamine was $50 - $75, Mr Cotte's habit would cost him $50 - $450 a day.
[51] ts 61.
[52] ts 58.

Conclusion of basis of sentence on counts 4 and 5

I do not accept Mr Cotte's evidence as to how he came into possession of these drugs. As already explained I did not find Mr Cotte to be a credible witness at all and the suggestion that he happened to see this bag in the car headlights at the periphery of his vision is in my view wildly implausible. I was informed in the hearing that Mr Cotte would have difficulty in reading documents without glasses.
Against that, as I have observed there is no history of dealing in these substances nor any other circumstantial evidence that clearly points to an intent to deal in these particular substances as opposed to methylamphetamine. It is quite possible that Mr Cotte intended to sell at least some of these drugs, they of course having the value I have noted at [13]. Against that, the possibility exists that he was holding them on behalf of some other person and would have returned, and therefore supplied those drugs to such person were it not for the police raid.
If a 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 Mr Cotte, 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.
In respect of counts 4 and 5, I am in the position where I am not able to make positive findings and so I will sentence Mr Cotte on the basis that for a period that cannot be determined he was in possession of these drugs with an intention to sell or supply at least some of them. It is not possible to be any more precise than that.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MW
Associate to Judge Troy
15 APRIL 2020