The State of Western Australia v Finlay
[2018] WADC 152
•9 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- FINLAY [2018] WADC 152
CORAM: STAUDE DCJ
HEARD: 2 OCTOBER 2018
DELIVERED : 9 NOVEMBER 2018
FILE NO/S: IND 1527 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
MICHEAL JAMES FINLAY
ROBERT TRISCARI
Catchwords:
Criminal law - Misuse of Drugs Act offences - Trial of issues - Whether the admitted offences involved cannabis or methylamphetamine
Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
The court is satisfied beyond reasonable doubt that each of the offences involved methylamphetamine
Representation:
Counsel:
| The State of Western Australia | : | Ms K Robinson |
| First Named Accused | : | Ms L B Black |
| Second Named Accused | : | Mr P G Giudice |
Solicitors:
| The State of Western Australia | : | State Director of Public Prosecutions |
| First Named Accused | : | Brian V O’Haire |
| Second Named Accused | : | George Giudice Law Chambers |
Case(s) referred to in decision(s):
Nil
STAUDE DCJ:
Introduction
Michael James Finlay has pleaded guilty to 10 counts of offering to supply a prohibited drug to another (counts 1 to 10), one count of conspiracy to possess a prohibited drug with intent to sell or supply it to another (count 11), one count of attempt to possess a prohibited drug with intent to sell or supply it to another (count 12), one count of having ready access simultaneously to both an offensive weapon and cash equal to or more than $3,000 (count 13), and one count of possession of a sum of money reasonably suspected to have been unlawfully obtained (count 14). Mr Triscari entered his pleas to counts 1 – 12 on the basis that the prohibited drug was not methylamphetamine as alleged by the State, but cannabis.
Robert Triscari has pleaded guilty to one count of conspiring with Mr Finlay to possess a prohibited drug with intent to sell or supply it to another (count 11). His plea was also entered on the basis that the admitted conspiracy was to possess cannabis.
The substantive offence in each of counts 1 – 10 and 12 is against s 6(1) of the Misuse of Drugs Act 1981. The type of prohibited drug is a fact that determines the maximum penalty. At the relevant time the maximum penalty prescribed by s 34 for offences involving methylamphetamine was 25 years imprisonment and/or a fine of up to $100,000, and for offences involving cannabis, 10 years imprisonment and/or a fine of up to $20,000. The maximum penalties apply to an attempt to commit an offence against s 6(1).
With respect to count 11 on the indictment, the offence of conspiracy to possess a prohibited drug pursuant to s 33(2) relevantly provides:
A person who conspires with another to commit an offence under this Act (the principal offence) commits –
(a)if the principal offence is a crime under s 6(1) that does not involve methylamphetamine, the crime, that is liable on conviction to the penalty referred to in s 34(1)(b):
…
Section 34(1)(b) provides that a person convicted of:
conspiring with another to commit a crime under section 6(1) that does not involve methylamphetamine is liable to a fine not exceeding $75 000 or to imprisonment for a term not exceeding 20 years or both.
As the maximum penalties for offences involving methylamphetamine are higher than for those involving cannabis, the State bears the onus of proving beyond reasonable doubt that the prohibited drug the subject of each of counts 1 - 12 was methylamphetamine, as the indictment alleges. Thus, the matter comes before the court as a trial of that issue. No issue arises with respect to counts 13 and 14, the facts of which have been admitted.
As none of the offences in question involved actual possession and as the police did not find either of the accused in actual possession of methylamphetamine pertaining to any of the offences, the State's case is circumstantial. The State contends that the only reasonable inference that can be drawn from the facts established by the evidence as a whole is that Mr Finlay was dealing in methylamphetamine on each of the occasions pleaded in counts 1 to 10, that the admitted conspiracy between Mr Finlay and Mr Triscari was with respect to methylamphetamine, and that the attempt by Mr Finlay to possess a prohibited drug on 2 November 2016 was with respect to methylamphetamine.
As the case is circumstantial and as the State bears the burden of proving it beyond reasonable doubt with respect to each offence, I cannot come to a conclusion against either offender that the drug in which they were dealing was methylamphetamine unless it is the only reasonable inference open on the facts. Therefore, I must be able to exclude in each case a reasonable inference that the drug was cannabis. I am bound to look at the evidence as a whole.
The court is required to decide the issue in respect of each count separately, but as the counts have been joined on the same indictment, the evidence of each is cross-admissible, so a conclusion of guilt on one count may give support to an inference of guilt of another. But, of course, I cannot reason that because methylamphetamine was the prohibited drug in one count that it was so in another.
Overview
The State relies principally upon the telecommunications by SMS and voice call between the offenders and others from 27 October to 2 November 2016, the discovery by the police of 24 ounces of methylamphetamine in the possession of one Truskauskas at Mr Finlay's home in Noranda on 2 November 2016, the possession by Mr Finlay on that day of almost $46,000 in cash, and the propensity of Mr Finlay to deal in methylamphetamine. The State also relies on evidence of the respective values of cannabis and methylamphetamine at the relevant time.
Mr Finlay gave evidence that although he had previously dealt in methylamphetamine, he was not doing so at the time of these offences. He admitted conspiring with Mr Triscari to supply him with cannabis. He adduced evidence from two witnesses, Roxanne Moke and Walter Rees, each of whom admitted being supplied with cannabis by Mr Finlay.
Mr Triscari gave evidence to the effect that he bought cannabis from Mr Finlay that he distributed in the Northampton area where he lived and that he did not agree to buy any methylamphetamine from him. The conspiracy to which he was a party involved cannabis.
It is a significant feature of the case that the offenders were at odds as to the terms of their conspiracy, Mr Finlay's position being that he had agreed to supply Mr Triscari with 15 pounds of cannabis, and Mr Triscari's being that he only ever purchased cannabis by the ounce from Mr Finlay and intended to buy 15 ounces. They were also at odds as to how much Mr Triscari owed Mr Finlay as at 1 November 2016. Finlay's evidence was $76,500 for 17 pounds of cannabis. Mr Triscari maintained that he only owed $7,650 for 17 ounces.
Evidence
Search of 6 Delves Place, Noranda
After an investigative operation that involved the lawful interception of Mr Finlay's mobile phone service number ending 950 the police attended at a residence at 6 Delves Place, Noranda at about 3.30 pm. The police arrested Mr Finlay outside the residence when he arrived in a red utility. On Mr Finlay the police found $13,900 in cash. In an insulated bag in the utility the police found further quantities of cash in the amounts of $5,500, $4,500 and $22,050. The total sum was $45,950. The police also located in the bag two small notebooks (exhibit 7) that contained what Mr Finlay admitted in his evidence to be tick lists, that is, details of monies owed or owing with respect to drugs. Two black Samsung mobile phones were also found in the red utility.
Audio visual recordings of the search of Mr Finlay and his vehicle and of the residence at Delves Place were proved by Detective First Class Constable Anthony Garcia.
During the search of the residence the police searched a backpack in the possession of Tomas Truskauskas in which there were four packages of methylamphetamine two of which weighed 277 g, one 82.9 g and another 55.7 g a total of 692.6 g (24.7 ounces).
In the residence police found in a room occupied by Mr Finlay a quantity of approximately one pound of cannabis. Other amounts of cannabis were also found, as well as a number of electronic scales with traces of methylamphetamine on them, as well as a vacuum sealer and a number of vacuum sealed bags. Other items of interest were seized that are not relevant to this matter.
Search of 4 Rake Place, Northampton
Later on the same day police executed a Misuse of Drugs Act search warrant at Mr Triscari's home in Northampton. In Mr Triscari's utility the police located two mobile phones that did not have SIM cards, a small quantity of methylamphetamine, and a smoking implement. Another smoking implement was found in Mr Triscari's shed.
Telephone intercepts
The searches were authorised and carried out after the police had, over a period of time, intercepted voice calls and messages to and from Mr Finlay's mobile phone. The communications relevant to counts 11 and 12 are contained in a spreadsheet (exhibit 6). This spreadsheet sets out text communications between Mr Finlay's mobile phone and three other numbers. The number ending 734 is admitted to be Mr Triscari's number. Mr Triscari has also admitted that number ending 463 belongs to his wife. The number ending 290 is said by the State to be a number used by Mr Triscari, but he has denied that it is. The number ending 786 is attributed to Truskauskas, Mr Finlay's supplier.
The mobile service number ending 290 was found to be registered in the name of one Ross Mutter. A witness statement from Mr Mutter was read into evidence. He stated that the number was acquired by him, but given to another. He did not know what had become of it.
In the State case, the association of the number ending 290 with Mr Triscari is supported by the subject matter of the messages that were sent from it, the context created by voice calls between Finlay and Triscari, and messages between Triscari and Finlay prior to and subsequent to messages between Finlay's phone and the number ending 290.
290 to 950
1/11/2016 23:54
Hey bro is your mate going to take some of this u no for that cloudy day I make fuk all when I told u I didn't wnt that one u still sent it up if not take out of wt u made + now I get more prose should be going down me and mate being offered 17 of 68 that's 4 each maybe you go 4250 each hey only fair anyway someone be here 6 o'clock tonight sorry bro just fucking pissed off
950 to 290
2/11/2016 04:39
He won't drop price and if ya can get cheaper go get it they're only cheaper if you got cash up
950 to 290
2/11/2016 04:55
76500 need to grab off ya
950 to 734
2/11/2016 04:56
76500 need to grab off ya
950 to 463
2/11/2016 04:57
76500 need to grab off ya
734 to 950
2/11/2016 05:01
Yea no worries can you do next lot $4300 each Cam wmt 15
950 to 734
2/11/2016 05:05
I'll find out
950 to 734
2/11/2016 05:05
When do you want to do it
290 to 950
2/11/2016 05:11
Dropped of tonight
950 to 290
2/11/2016 05:12
K I'll organise it
290 to 950
2/11/2016 07:39
Cool
290 to 950
2/11/2016 07:41
Can you bring red thing and clear at $4300 hey that's fair been doing alright
950 to 290
2/11/2016 08:13
Rob everything good but price I don't think it will happen but I'll try
290 to 950
2/11/2016 09:26
Mick the going rate in Perth is $5400 to $5000, I get 15 so surely $4300 always cheaper when getting more
950 to 290
Cash up it's cheaper
Exhibit 6 shows that at 05:13 on 2/11/2016, during the course of the above exchange, Finlay messaged Truskauskas: 'need that meal and 15 tickets cheers'. Messages from 10:05 on 2 November 2016 lead to the following exchange:
950 to 734
2/11/2016 13:23
Do ya want 35
950 to 734
2/11/2016 13:23
Can do it
734 to 950
2/11/2016 13:30
Na no way 15
950 to 734
2/11/2016 13:37
K
950 to 786
(Truskauskas)
2/11/2016 13:38
330 Noranda 24 tickets
786 to 950
2/11/2016 13:47
Locked in
786 to 950
2/11/2016 13:47
See u then
950 to 786
2/11/2016 13:49
Ka
786 to 950
2/11/2016 15:22
I'm here
Exhibit 10 is a SMS report listing messages received by Mr Finlay's phone on 2 November 2016 from 16:09. At that time a message was received from the number ended 290: 'Daryle getting traded'. This was followed by another message from that service at 16:10: 'Raded'.
On 31 October 2016 at 21:11 Finlay and Triscari had a telephone conversation that was in part as follows:
Triscari:
These things are not that good. I've had heaps of complaints man.
Finlay:
[indistinct]? Like, what's wrong?
Triscari:
Hey?
Finlay:
What's wrong with it?
Triscari:
Oh [indistinct] choppy shit.
In a further conversation at 21:50, Triscari said:
Oh. Ah, like, Mick, that thing was shit, man I'm telling ya. I've had that many complaints. Out of 17, I made fuck all out of it.
I don't usually complain, man, like this bad. But that was, man, it was shit.
…
What I think it is, man [indistinct] and it, and it was, man. It tastes like shit. It's got, some bits, some bits are good. Some – most of it was shit. You know what I mean?
Finlay responded:
I know, I know, I know what, what you mean about the powder on top of it. It wasn't, it's [indistinct] or something. I don't know. But it, it couldn't be chopped because it wouldn't make sense to have dust on top of it.
Triscari then asked: 'What were those big chunks?' Later, Finlay said: 'The one they got now is clear'. Triscari responded: 'That's what I asked you for, but you give me that shit'. Triscari then asked if Finlay would 'knock a bit off or something'. He said: 'you'll make nothing out of this 17, just about. Have to give some money back'. Finlay responded that his mate would not give it to him cheaper. Then, he said:
But I'll say something to him. But he won't give it to me cheaper like, cause it's already cheap as it is.
Mr Triscari said:
Usually I don't mind. Usually it's wicked, but this one here was just fucking, it cost me. And I, I didn't even, I didn't even make 5 grand out of 17, man. And how does that work? You know what I mean?
During that conversation Mr Triscari can be heard to take a call on another phone.
The evidence of counts 1 to 10 consists of a series of intercepted voice calls and text messages that are set out in exhibit 6. Except for Roxanne Moke and Walter Rees who were defence witnesses, I will refer to the person communicating with Mr Finlay as the other party.
Count 1 is proved by a series of text messages and a voice call. The other party was Roxanne Moke. She initially asked for '4', then '8'. Mr Finlay then sent a message to number ending 786 (used by Truskauskas, but subscribed in the name of Walter Rees) indicating that his friend from Margaret River wanted to collect 'eight tickets'. In an oral conversation with Ms Moke at 19:18 on 27 October 2016 the number 10 is mentioned in code. Half an hour later Mr Finlay messaged Truskauskas requesting 10 tickets.
In the spreadsheet of communications in relation to count 1 there is another phone service ascribed to Walter Rees, number ending 878. The caller from that number asked Finlay for his address.
In relation to count 2 there are text messages between Mr Finlay and the phone service number ending 338. The other party requests '3', to which Mr Finlay responds 'I will be over in twenty'.
Count 3 arises from communications between Mr Finlay and a mobile number ending 437. In a voice call at 20:01 on 28 October 2016 the other party asked for 'four'. Mr Finlay then sent a message to the number ended 878: 'Brooke wants four tickets'.
Count 4 is proved by text messages between Mr Finlay's number and the number ended 338. At 04:48 on 29 October 2016 Finlay texted the other party 'how many more tickets you want' to which the response was 'three'.
Count 5 is proved by text messages between Mr Finlay's number and a number ending 079. The other party sent a text at 12:51 on 29 October 2016: 'What's the figure on 6 paper up for 6 tonight'. Later, Finlay texted: '4250 each'. The other party responded: 'so 6 at 6 pm lol'.
Count 6 is proved by a conversation between the person using number ending 338 and Mr Finlay's number. Finlay texted 'you want another 3?', to which the other party responded 'nah, just a couple'.
Count 7 is proved by text messages between a mobile number ending 145 and Mr Finlay's number. Mr Finlay's offer at 21.12 on 29 October 2016 is 'I've got one'.
Count 8 is proved by text messages between Mr Finlay's number and a number ending 353. At 09:25 on 31 October 2016 Mr Finlay sent a text message: 'do you still want tickets and how many'. The other party asked for two.
Count 8 arises from text messages between Mr Finlay's number and the number ending 353. At 2110 31 October 2016 Finlay messaged: 'couple here for yah'.
Count 9 arises from text messages and a voice call between Mr Finlay's number and the number ending 145. Finlay offered 'one'.
Count 10 arises from text messages between Mr Finlay's mobile phone and the mobile service number ending 338. At 20:45 on 1 November 2016 Finlay texted the other party asking for '15,750'. His next text message stated that he needed all the money by Friday. At 23:43 on 1 November 2016 the other party responded: 'I have most of it here'. At 12:37 on 2 November 2016 Finlay texted: 'I've got but at gun club just make sure ya got all ill give yah 8'.
The offers the subject of counts 1 - 10 were made over a period of about one week. The offers do not specify the prohibited drug to be supplied.
Finlay's propensity
The State tendered a composite statement of material facts of offences involving methylamphetamine of which Mr Finlay was convicted on three occasions in this court being 2 November 2005, 4 November 2008 and 14 November 2013 (exhibit 8).
On the first occasion Mr Finlay was convicted of two summary matters pursuant to s 32 of the Sentencing Act 1995 (WA). On 26 March 2004 he sold 1 g of methylamphetamine to an undercover police officer for $350 cash. On 2 April 2004 Mr Finlay sold to undercover police officers 1.72 g of methylamphetamine for $500.
On the second occasion Mr Finlay was convicted on IND 605 of 2008 in relation to methylamphetamine dealing. On 15 October 2007, Mr Finlay's vehicle was stopped by the police. The police located $38,000 in cash under a floor mat and $955 in his wallet. At his home the police located two quantities of methylamphetamine, one of 0.32 g and another of 6.86 g with a purity of 30% as well as a quantity of clip seal bags and a set of scales.
On the same occasion, on IND 1754 of 2008, Mr Finlay was convicted of two further methylamphetamine dealing charges. On 27 February 2008 he was in possession of 1.19 g of methylamphetamine and $1,770 in cash. Upon a search of his parents' home that day, the police found a total of 54.2 g of methylamphetamine, of a purity of 18% - 24%. Police also located scales and other indicia of drug dealing, including small clip seal plastic bags.
On a third occasion, Mr Finlay was convicted of two counts of possession of methylamphetamine with intent to sell or supply. On 27 September 2012 the police stopped his vehicle in Midland and he was found to be in possession of $7,295 cash and three clip seal bags of methylamphetamine of the total weight of 3.8 g of a purity of 51% ‑ 68%.
On the same day the police searched Mr Finlay's accommodation in Gidgegannup and found two clip seal bags containing 22.7 g of methylamphetamine of purities of 40% and 57% respectively. Police also located $28,650 in $50 notes.
Detective Senior Constable Smirk's evidence
Detective Smirk was the officer in charge of the investigation of this case. He gave evidence in relation to the telecommunications intercepts and also some expert evidence as to the units in which methylamphetamine and cannabis are sold and the values of those drugs in November 2016. Detective Smirk said that methylamphetamine is sold in units as low as 0.1 g. The next usual measures are half weight (0.5 g), weight (1 g), half ball (1.75 g), 8 ball (3.5 g), quart (7 g,) ounce (28 g) and kilo (1 kg).
Detective Smirk said that methylamphetamine of a purity of 78% to 80% (being the purity of the methylamphetamine found on Truskauskas) could be regarded as being close to the source of manufacturing, that is, undiluted for resale. Methylamphetamine could be bulked by adding another substance to it, but cutting methylamphetamine this way was not common in 2016. He said that the substance added to the drug was called 'chop'.
In 2016 methylamphetamine was most commonly seen in the crystallised form. Prices varied according to the quantity: a gram was worth $300 - $400, an eight ball $1,000 - $1,200, an ounce $5,000 -$6,000 and a kilo $120,000 - $150,000. He accepted that $4,200 or $4,300 per ounce in 2016 was cheap.
Cannabis was usually sold in quantities of a gram, a quart, an ounce and a pound. A gram would sell for $25, a quart for $100, an ounce for $300 and a pound (454 g), for $3,000.
Detective Smirk said in cross-examination he agreed that the word 'ticket' could refer to an ounce or a pound.
He disagreed with the proposition put by counsel for Mr Finlay that the cannabis price varied considerably in 2016. He said in his experience a pound of cannabis was worth around $3,000 in Western Australia at that time. He said that the amount of $3,000 per pound was taken from a police database of reports of drug prices. It was an average price. In the police data base there was no distinction drawn between bush grown and hydroponic cannabis. He said, however, that hydroponic cannabis was normally more expensive and he agreed that cannabis may be more expensive if it is supplied on credit.
In cross-examination by Mr Giudice for Mr Triscari, he said that 'chop' was not a word that he had come across in relation to cannabis.
Finlay's evidence
Mr Finlay acknowledged that he had been sentenced to terms of imprisonment for methylamphetamine dealing. He said he admitted those offences. He had been a methylamphetamine addict. He underwent eight weeks of rehabilitation while on parole from December 2014. He subsequently became involved in selling cannabis. He did not deal again in methylamphetamine.
He said that he decided to deal in cannabis rather than methylamphetamine, as he had before, because he would not become addicted, as he did to methylamphetamine. He said that people involved in cannabis distribution were not as desperate as those who were involved in methylamphetamine. He was also mindful of the substantially lower penalties that apply to cannabis dealing as opposed to methylamphetamine dealing.
He had been buying cannabis from Truskauskas for about six months before his arrest. He only ever purchased it by the pound. When he bought cannabis, Truskauskas would come to his house on an electric bike. They would then go together to his van that he would park some distance away from the house. He would pay for the cannabis at the house and then take delivery at the van. In 2016 he was paying $3,500 per pound. He said it was expensive because it was on credit. He also said it was hydroponic cannabis which is more expensive than bush cannabis.
Mr Finlay said that he had never used the word 'powder' or 'powdery' as reference to cannabis, but he said that people had used that word in communications to him and he understood it to refer to cannabis had crumbled because it was too dry. He was also asked about what he understood by references to the taste of cannabis. He said he had been told by people that some cannabis had a foul taste because of the way it was grown.
In cross-examination he agreed that Mr Triscari had told him that he had received complaints about the quality of cannabis supplied that he referred to as 'choppy shit'. Mr Finlay said that he understood that to mean that the cannabis was crumbly and went to dust.
Mr Finlay said that he would always resell the cannabis in quantities of a pound or more for $4,500 per pound on credit, sometimes for $4,000 or $4,250, 'depending who it was and depending how much they got'.
He said in August 2016 he was scared of being detected so he tried to stop selling cannabis. He said he referred his customers to Truskauskas. Then he said that at one point his customers told him that the couriers were not reliable so he began supplying them again.
In relation to Mr Triscari, Mr Finlay said that he sold cannabis to him over a period of six months in quantities of pounds at $4,500 per pound on credit. He would generally deliver the cannabis to Mr Triscari personally, but on some occasions other persons would deliver the cannabis to Geraldton.
He was living at 6 Delves Place, Noranda, the home of Darryl Triscari, Mr Triscari's brother. He acknowledged that the quantity of almost one pound of cannabis found in a bedroom in that house during the search was his, acknowledging that his denial of ownership to the police in the search was false. He said that cannabis was intended for a customer whose contact name was Carla Gerard.
He said he had nothing to do with the methylamphetamine found in the backpack of Truskauskas.
Mr Finlay's evidence was that the offers to sell drugs that he had admitted by his pleas of guilty were offers to sell cannabis.
He was referred to the voice calls and text messages between him and Mr Triscari. By 2 November 2016 Mr Triscari owed him $76,500 for 17 pounds of cannabis. Mr Triscari wanted to get cannabis cheaper. He said that Triscari did not like the taste of the cannabis that had previously been supplied. Triscari wanted to pay $4,300 a pound, but he did not agree to that price because the cannabis was being sold on tick, meaning on credit. He also thought that Triscari wanted a different type of cannabis.
He said that text messages sent by him on 2 November 2016 to Truskauskas related to cannabis to be delivered that day. He said the words 'need that meal and 15 tickets' meant that he had people who wanted to speak to Truskauskas about drugs and that he wanted to buy 15 pounds of cannabis. He said that the words used in a text message to Mr Triscari, 'can you bring the red thing and clear at $4,300' referred to a fire extinguisher that was modified to carry cash and $4,300 meant the rate per pound for the cannabis.
He said that a text message sent by him to Mr Triscari that said 'do you want 35?' meant 35 pounds of cannabis. He said his message to Truskauskas '3.30 Noranda 24 tickets' referred to 24 pounds of cannabis. His explanation for there being no cannabis found in Mr Truskauskas' possession was that in his experience Truskauskas had always handed over the cannabis at his van that he always parked some distance away. On this occasion as on other occasions Truskauskas had arrived at the Noranda house by e-bike.
Mr Finlay said that 15 pounds of the 24 that he ordered from Truskauskas were for Mr Triscari. His plan was to sell the other 9 pounds to whoever wanted it.
In relation to the cash found in his possession he said that $30,000 was for Truskauskas. He owed him $68,000. The balance of $15,950 was money owed to Truskauskas by another customer from whom he had picked up the cash.
In cross-examination Mr Finlay rejected Mr Giudice's proposition that the one pound package of cannabis found in his room was for Mr Triscari who had ordered, not 15 pounds of cannabis, but 15 ounces.
He said that he sold cannabis to Roxanne Moke and that Walter Rees would deliver cannabis to another customer.
Finlay said that he understood Truskauskas obtained the cannabis he supplied to him for $2,800 per pound on tick.
In relation to notebooks (exhibit 7) Mr Finlay acknowledged that they were tick lists, but said that they were for cannabis transactions. He said the reference 'Gero17 x $4,500 = $76,500' was a reference to 17 pounds of cannabis supplied to Mr Triscari at $4,500 per pound. It was put to Mr Finlay by Mr Giudice in cross-examination that in fact Mr Triscari owed him $7,650, but he maintained that the debt was $76,500 and that it was not a mistake.
He said the reference 'Boris 10 x 4,500 = $45,000 was a reference to Truskauskas. He explained that entry by saying that some of the customers that he had referred to Truskauskas owed Truskauskas and that he had agreed to repay their debts. He said 'I sort of felt bad giving him customers that weren't paying him'. He said he would then collect the debts himself from his customers.
The reference 'Darryl 5 x 400 plus ½ oz coke' did not refer to a supply of drugs by him, but to money that he was trying to collect for a friend who was in gaol so he could pay legal fees.
When asked about the conversation he had with Mr Triscari on 31 October 2016 he said that his statement 'it couldn't be chopped because it wouldn't make sense' meant that mixing bush cannabis and hydroponic cannabis would not make sense. He said he did not know what Mr Triscari meant by saying that the cannabis had big chunks, but he understood his reference to 'clear stuff' to mean a lighter green cannabis that was not so crumbly and was more moist.
In relation to the SMS messages on his phone (exhibit 10), Mr Finlay said that he did not receive any messages to the effect that the police has raided Darryl Triscari's home at Noranda.
Mr Finlay firmly denied that he had supplied Mr Triscari with ounces of cannabis as opposed to pounds. He denied selling two ounces of cannabis to him for $700 in July/August 2016, then supplying him 15 ounces for $4,500 and again 10 ounces for $3,000. It was Mr Finlay's evidence that he had supplied Mr Triscari with a quantity of 17 pounds, in the period of two weeks or so prior to being arrested.
Evidence of Roxanne Moke
Ms Moke said that she lived in Margaret River and that she purchased cannabis from Mr Finlay. She had never purchased methylamphetamine from him even though she used that drug. She acknowledged having a lengthy criminal record, including various offences for the possession of cannabis, methylamphetamine and MDMA. Most recently she had been convicted for offences in April 2017 of possession of cannabis and possession of methylamphetamine.
She said that she would drive from Margaret River to Perth to collect cannabis from Mr Finlay at various locations. She initially bought ounces, but then pounds. She would pay him 'about' $4,500 for a pound of cannabis. She said that the price was expensive, but she was prepared to pay because cannabis was not available in Margaret River and he provided credit. Her neighbour was willing to pay that much. She could not recall how long it took to repay him. She would sell the cannabis, but occasionally use some of it. She preferred methylamphetamine that she would buy in Margaret River.
She was referred to the table of text messages. She said that her mobile number was the one ending in 385. When she asked for 4 she was asking for 4 pounds of cannabis. Her text message at 15:39, 'To risky otherwise and it's not cheaper at I'm leaving now', meant that she did not want to take more because it was a bit risky. (I note that her message at 18:13 was '8' and that at 18:23 Finlay sent a text message to a number ending 786, 'My margaret river friend on the way for 8 tickets'.)
In cross-examination Ms Moke said that she never purchased methylamphetamine from Mr Finlay. She said she would never have bought 4 ounces of methylamphetamine. She said it was out of her league. She intended to supply her neighbour with the cannabis, adding $500 to the cost. It was not clear from her evidence whether her profit was per pound, or from the entire quantity.
Evidence of Walter Rees
Mr Rees said that he had a relationship with a person (referred to in these reasons as BP) and met Mr Finlay through her. Their relationship ended in 2013, but he reconnected with her in 2016. At the time he was using methylamphetamine. He had never purchased methylamphetamine from Mr Finlay. To get money to feed his methylamphetamine habit he said he would do jobs for BP who he knew to be selling methylamphetamine and cannabis. He did errands for her in relation to drug dealing.
Mr Rees said that he met with Mr Finlay a few times at BP's place or other places. At times he had collected cannabis from Mr Finlay on her behalf, 2 or 3 times. He recalls collecting 4 one pound quantities of cannabis packed in vacuum sealed bags. He was not involved in paying for the drugs. He would be rewarded with methylamphetamine. He would also do housekeeping jobs for BP.
He said that he had a number of mobile phones some of which had gone missing. Others he had sold to support his drug habit.
The name Tomas rang a bell for him. He recalled that he met someone of that name in 2016, but he could not remember the occasion.
Evidence of Triscari
Mr Triscari said that prior to 2 November 2016 he had bought 17 ounces of cannabis from Mr Finlay. Mr Triscari admitted to being a user of methylamphetamine, but he had never purchased methylamphetamine from him.
He said he met Mr Finlay 3 or 4 months before at his brother's house in Noranda. There were a lot of cannabis smokers in and around Northampton. His brother told him that Mr Finlay could obtain cannabis. He initially bought a couple of ounces at $300 or $350 per ounce that he sold for $400. He then bought a pound, but received 17 ounces. He said he bought cannabis 4 or 5 times from Mr Finlay.
He said that on the next occasion he bought cannabis he ordered 15 ounces. This was because he had received one ounce more than a pound on the previous occasion. He said to Mr Finlay 'just give me 15, that will make up 16, which will make two pounds'. He said he would buy cannabis on credit and sell in Northampton. He would buy cannabis for $4,500 per pound and sell it for $6,400.
When asked about the scales that were found in his house he said they were used for mixing up pearl colours when he painted motorcycle tanks, but he also used the scales to measure methylamphetamine for his own use. To weigh cannabis he would use kitchen scales.
He acknowledged that he used the mobile phone number ending 734 and that his wife had a number ending 463. He did not know anything about a number ending 290. He had never heard of a person called Ross Mutter or Anthony Hughes. He had never been given a mobile phone. He was not aware of the police search of his brother's house and did not send a text message to Finlay saying that his brother was getting raided.
When he was asked about the telephone conversation he had with Mr Finlay about the complaints he received, he said that the expression 'chopping shit' meant that there was a 'big chunk of bud' and 'heaps of leaf'. He said the cannabis had not been 'manicured' properly. When he said 'it tastes like shit' he meant that it was not good. He did not know what Mr Finlay meant when he used the word 'powder', but he could imagine that when crushed the cannabis would be powdery. When he was asked about Mr Finlay's text message 'it couldn't be chopped because it wouldn't make sense', he said that he could only think that he meant chopped leaf. When he used the expression 'dust on top of it' he thought he was talking about cannabis that had got crushed in the bag and turned to dust.
He was asked about what he understood Mr Finlay to mean when he said that the one they had now was 'clear'. He said that clear meant a drug that was a better strain and made a better smoke.
Mr Triscari was asked about what he meant when he said in the conversation 'I didn't even make $5,000 out of 17'. He said 'that's the 17 ounces that I had got and I didn't make – I made $5,000 but I – just made $5,000. Like, if I'm doing to drive down there for that and pay $4,500 and only make – only just made $5,000 on the whole lot. So, if $500 to sell 16 – 17 ounces, what's the point in doing that?'
Mr Triscari went on to explain that by $5,000 he meant the amount for which he was able to sell a pound of cannabis. He said he would expect to sell 16 ounces for $6,400, but he was only able to sell the 17 ounces he bought from Mr Finlay for $5,000.
He said he never sent any text messages to Mr Finlay from a mobile phone number ending in 290.
He was also asked about the text message received from Mr Finlay on 2 November 2016 saying '$76,500 need to grab of ya'. He said that at that time he owed Mr Finlay $7,650. When he received the text message he was driving a road train during harvest so he 'just pressed yes'. He responded:
Yes. Yeah, no worries. Can you do next lot 4,300 each cam wnt 15.
He said he meant 15 ounces of pot. He was asked about the next text message from Mr Finlay: 'Do you want 35?'
And he acknowledged that he responded: 'No. Nah. No way, 15.'
He meant that he wanted 15 ounces because previously he got 17. He did not want to keep owing him money.
In cross-examination by Mr Finlay's counsel Mr Triscari maintained that he only owed Mr Finlay $7,650 and that his order was for 15 ounces of cannabis, not 15 pounds.
In cross-examination by Ms Robinson for the State Mr Triscari admitted that he was using half a weight (0.5 g) per week and would spend over $1,000 per month on methylamphetamine that he bought from a person in Kalbarri. He denied the suggestion that he was buying methylamphetamine for Mr Finlay.
He said it was out of honesty that he ordered 15 ounces on 2 November 2016, having received an extra ounce in his previous purchase. He said he did not like to rip anyone off.
He acknowledged that in the mobile phone conversation with Mr Finlay on 31 October 2016 on the number ending 734 he told Mr Finlay 'I don't like talking on this phone here, and'. He said that was because it was his own phone.
When he was talking about complaints he had received about drugs that he had supplied he said that people told him that the cannabis 'tasted like crap' and 'looked crap' and he had to sell it cheaper. Counsel asked:
When did you work out that it was so bad?
A:Well, when I first got it really but that's why I sold it to them cheaper, they still complained.
How did you find out that it was crap?
A:Well, when I first got it and brought it up it – it and took it out of the virapack, it was crap, you could see it was crap. You can't really tell in there because it's all together and all – but then when I sold them – like so I looked at it and thought this is crap so I just sell them cheaper, enough to make the money back but I was still complaining, I – I was – and then they complained to me as well. Even though I sold it to them cheap.
Mr Triscari gave no evidence as to the rate at which he sold the 17 ounces.
He denied the suggestion that his reference to making $5,000 meant profit from the sale of methylamphetamine.
Discussion
Notwithstanding that I gave each of the witnesses called by Mr Finlay, Roxanne Moke and Walter Rees, a section 11 certificate on the basis that each had given evidence satisfactorily, I do not find that their evidence is reliable.
Ms Moke's evidence was that she bought cannabis by the pound at $4,500 per pound, the price that she said was expensive due to there being no available cannabis in Margaret River at the time. She said she obtained the cannabis from him on credit. She did not say how long it would take her to repay it. She would on-sell the cannabis to a neighbour making $500 per pound. She said that less than a week prior to his arrest she agreed to buy 4 or 5 pounds of cannabis from Mr Finlay (corresponding to the offer the subject of count 1). The mobile phone intercepts in relation to count 1, however, indicate that her order was actually for 8 and this order was relayed to Truskauskas.
Her evidence was implausible. If she is to be understood as saying that she made $500 on 4 pounds of cannabis worth $18,000 then that would be too small a return to justify the risk. I cannot accept that Ms Moke would have transacted cannabis by the pound for such a small reward. Even if one assumed that she made $500 per pound it is a paltry return for the risk of which she was well aware. I simply do not accept Ms Moke's evidence that she was purchasing cannabis in such quantities in the manner she described. In any event her evidence only goes to count 1.
Mr Walter Rees' evidence was also unreliable. It lacked cogency. Obviously, a mobile phone number registered in his name was used by Truskauskas, that is, the number ending 786. He did not give evidence that he used the other number registered in his name, ending 878. The person who used that number on 27 October 2016 enquired of Mr Finlay what his address was. Mr Rees' evidence was that he had been to Mr Finlay's place and in fact was at his place on an occasion when he was asked to 'pick up 4 pounds of marijuana from Michael'. Mr Rees purported to remember one occasion of picking up 4 pounds of cannabis from Finlay, but could not recall other occasions. He said he remembered that occasion better than a couple of other times of which he said he did not have a good memory and of which he did not provide any details.
Furthermore, Mr Rees' evidence in relation to his acquaintance with Truskauskas was doubtful. He said he recognised the name Tomas, but not the surname. It 'rang a bell'. Two mobile phone numbers ascribed to Mr Rees can be seen by the intercepts to be numbers with which Mr Finlay communicated to order drugs or to arrange a drug transaction as appears from the 27 October 2016 intercepts.
Even if Mr Rees had couriered cannabis from time to time, his evidence cannot be related to any of counts 1-10. It is not relevant to counts 11 and 12.
I have no difficulty finding that the number ending 290 was used by Mr Triscari. Mr Triscari used more than one phone. It is clear from the context of his communications with Finlay and their chronological sequence that he used that number. It makes sense that he messaged Finlay to tell him that his brother's house in Noranda had been raided. He would not have known of course that Finlay was in custody by that time. Finlay's phone had been seized by then.
It can be seen from the sequence of text messages between Finlay and Triscari and Finlay and Truskauskas that Finlay has offered to sell '15' to Triscari and has then ordered '24' from Truskauskas, arranging to meet him at 3.30 at Noranda.
The evidence of Mr Finlay's previous methylamphetamine offences in 2004, 2007, 2008 and 2012 clearly shows, as he has admitted, that he was dealing in methylamphetamine. He was, on the basis of that evidence, and by his admission, an experienced methylamphetamine dealer. His evidence that after undergoing rehabilitation following his release from prison in December 2014 he chosen to engage in cannabis dealing was implausible and unconvincing. His rationale for doing so, namely, that by selling cannabis he would not become addicted as he would if he sold methylamphetamine, and that he would risk a lesser penalty was contrived.
It is clear that Truskauskas was dealing with methylamphetamine at the time that he was apprehended at the Noranda house on 2 November 2016. Truskauskas was in possession of 24.7 g of methylamphetamine of high purity at a time and at a place where he had arranged to meet Finlay for a drug transaction.
Finlay's evidence that in his dealings with him, Truskauskas would take him to a white van that he would park some distance away from the agreed meeting place is inconsistent with Truskauskas attending at the Noranda address on 2 November 2016 with a substantial and highly valuable quantity of methylamphetamine in his backpack. The evidence about the white van was invented to explain why Truskauskas was not found in possession of cannabis.
The most striking feature of this case is that Finlay arranged with Truskauskas to meet him at 3.30 at Delves Place having ordered a quantity of '24 tickets'. Truskauskas was found in possession of 24.7 g of methylamphetamine at the meeting place. This amount is not so much over the agreed figure that it would displace an inference that he was carrying what Finlay had agreed to buy.
The possession by Finlay of nearly $46,000 when he was going to meet Truskauskas at 6 Delves Place, Noranda, and the contemporaneous possession by Truskauskas of 24.7 g of methylamphetamine compels the inference that the deal made between them related to methylamphetamine, and that methylamphetamine was the subject of the agreement between Mr Finlay and Mr Triscari.
The inference is supported by the intercepted voice calls. The explanations given by Mr Finlay and Mr Triscari of the meaning of these conversations are untruthful.
Whether the prohibited drug is methylamphetamine or cannabis, the numbers, be they of ounces or pounds, indicate wholesale dealing activity. The empirical evidence of Detective Smirk as to the amounts in which various quantities of methylamphetamine and cannabis are transacted shows that the higher the quantity the lower the cost. This economy of scale is clearly evident in the price structure for both drugs. It is reasonable to infer that while a single ounce of methylamphetamine may be worth $5,000 - $6,000, larger quantities of methylamphetamine would be transacted at a lower rate. Accepting Detective Smirk's evidence that cannabis was worth $3,000 by the pound (on average), I would expect that in quantities of 4, 8, 15 or 24 pounds there would be reflected in the price, some discount.
$4,500 per pound is 50% above the going rate for cannabis at the time. That figure is not explained by the scarcity of cannabis in Northampton, or for that matter, Margaret River, or the cost and risk of selling on credit. It is implausible that multiple pound sales would be transacted at such a high price.
It is, therefore, more likely that the prohibited drug the subject of count 11, being the conspiracy, was methylamphetamine that was sold at a price that reflected the amount to be supplied. As Mr Finlay said in the mobile phone conversation with Mr Truskauskas on 31 October 2016, 'he won't give it to me cheaper, like, cos it's already cheap as it is'. This conversation was about cheap methylamphetamine, not overpriced cannabis.
So, while $4,500 per ounce may be seen as cheap, it would make sense that in quantities of, say, 15 or 24 ounces the price would be even cheaper as the intercepted text messages suggest. On 2 November 2016, using the number ended 290, Mr Triscari sent a message to Mr Finlay: 'Mick goin rate in Perth is $4,500 to $6,000 I get 15 so surely $4,300 always cheaper when getting more'.
My conclusion is also supported by the terms used in the conversation about the quality of the prohibited drug previously supplied by Mr Finlay to Mr Triscari. It was described by Triscari as tasting 'like shit' and being 'choppy'. He referred to 'big chunks'. I do not accept that these words describe cannabis. I do not accept that the word 'powder' meant crumbs, as Mr Finlay said, or that 'clear' was used in this context to mean a better strain of cannabis as Mr Triscari suggested or a lighter coloured cannabis as Mr Finlay said. Moreover, Mr Finlay's use of the phrases 'powder on top of it' and 'it couldn't be chopped' are consistent, on the evidence of Detective Smirk, with the prohibited drug being methylamphetamine rather than cannabis. As a matter of common sense the conversation was not about low grade cannabis.
Mr Triscari's evidence was untruthful. He was concerned to prove that he had conspired to buy 15 ounces of cannabis rather than 15 pounds as Mr Finlay said had been agreed. This evidence was given in a hapless attempt to minimise his involvement. His evidence that he owed $7,650, not $76,500 (being $4,500 x 17) was nonsensical, having regard to his response ('yeah, no worries') to Mr Finlay's text message on 2 November 2016 requesting payment of that amount.
Conclusion
For these reasons I am satisfied that the only reasonable inference that can be drawn from the admitted facts and the facts as I have found them, on the evidence, is that the conspiracy the subject of count 11, and the attempt to possess the subject of count 12, both concerned methylamphetamine. When he was apprehended Truskauskas was about to make delivery to Finlay of a quantity of methylamphetamine, most of which was intended to be supplied to Triscari.
I can positively exclude as a possible inference that the either of those offences involved cannabis. I reject the evidence of Mr Finlay and Mr Triscari. The evidence otherwise affords no support for such a conclusion. I am satisfied beyond reasonable doubt that the prohibited drug was methylamphetamine.
As for counts 1-10, the offers to supply can be seen to have been made over a period of one week leading up to 2 November 2016. They involved quantities of 8, 3, 4, 3, 6, 2, 1, 2, 1 and 8 respectively. The word 'ticket' is used in the offers in counts 1, 2, 3, 4 and 8. Truskauskas can be seen to be the source of supply in relation to counts 1 and 3.
From those facts, and on the basis of the findings that I have made above with respect to counts 11 and 12, having considered the available evidence of the terms of each offer, I infer that each was made with respect to methylamphetamine.
I do not accept Finlay's evidence that he was dealing in cannabis. I am satisfied that he was dealing in methylamphetamine at that time as he had done in the past over a long period of time. The conclusion that these offers were made with respect to methylamphetamine, not cannabis, is ineluctable. In each case, considering the evidence as a whole, the contrary inference can be excluded.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
ASSOCIATE TO JUDGE STAUDE9 NOVEMBER 2018
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