The State of Western Australia v Forrest
[2018] WADC 11
•2 FEBRUARY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- FORREST [2018] WADC 11
CORAM: LEVY DCJ
HEARD: 10 & 11 JANUARY 2018
DELIVERED : 2 FEBRUARY 2018
FILE NO/S: IND 2132 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
LEANNE DAWN FORREST
Catchwords:
Criminal law - Trial of issues - Possession with intent to sell or supply - Mitigating or aggravating factors - Onus and standard of proof - Bailee of drugs for another
Legislation:
Criminal Code
Evidence Act 1906 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Offender has failed to discharge the onus of proof in relation to a mitigating factor
Representation:
Counsel:
The State of Western Australia : Ms L A O'Brien
Accused: Mr R M Utting
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Accused: David Manera
Case(s) referred to in judgment(s):
DKA v The State of Western Australia [2017] WASCA 44
Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122
Grant v The State of Western Australia [2017] WASCA 162
Law v The State of Western Australia [2009] WASCA 193
Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] 1 VR 359
The State of Western Australia v Andela [2006] WASCA 77
The State of Western Australia v Thompson [2014] WASCA 108
LEVY DCJ:
Introduction
On 10 January 2018 Leanne Dawn Forrest (the offender) pleaded guilty before me to the offence that on 1 February 2015 at Karratha she had in her possession a prohibited drug, namely methylamphetamine, with the intent to sell or supply to another. The plea of guilty was entered by the offender on the basis that she was guilty of possession with intent to supply only. The offender contends that she was holding the drugs as a bailee on behalf of her husband George Forrest and intended to return them to him. The offender denies that she had an intent to either sell the drugs or supply them to anyone other than Mr Forrest.
The State does not accept the offender's position in relation to the circumstances of the offence for the purposes of sentencing. The State does not assert that the court should sentence the offender on the basis that there was any commerciality aggravating the circumstances of the offence. Rather, the State asserts that the offender should be sentenced on the basis that she intended to sell or supply the methylamphetamine. Furthermore, the State does not accept that the offender was acting as a bailee of the drugs on behalf of Mr Forrest. Consequently, it was necessary to have a trial of issues to determine the circumstances for the purposes of sentencing the offender.
The applicable law
The charge brought against the offender pursuant to s 6(1)(a) of the Misuse of Drugs Act 1981 (MDA) alleges that she possessed a quantity of methylamphetamine, namely 11.9 g at 82% purity, with an intent to sell or supply it to another. Pursuant to s 3 of the MDA, the words 'to supply' include 'to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied'. Consequently, holding drugs on behalf of another with an intention to return them to that person falls within the definition of intent to supply.
The word 'sell' is not defined by the MDA. It is notable that under the definition of supply the words 'to exchange' do not appear. It is commonly accepted that the word 'sell' means to give for money or to dispose of in exchange for money. In my view, the word sell can also include a situation where a person exchanges something for monetary reward or for something of monetary value.
The onus and standard of proof in sentencing
Since R v Olbrich (1999) 199 CLR 270 [25] it is well settled that for the purposes of sentencing, the prosecution bears the onus of proving any aggravating factor beyond reasonable doubt, and that an offender bears the onus of proving any mitigating factor on the balance of probabilities. Olbrich was later followed in Western Australia in Law v The State of Western Australia [2009] WASCA 193, see particularly Buss JA at [29] and [30].
In Law, Buss JA noted that whilst a plea of guilty negates all defences, 'it does not necessarily constitute an admission of all of the facts relied upon by the State for the purposes of sentencing' [27]. Furthermore, noting R v Storey [1998] 1 VR 359 [371], Buss JA said that the distinction between aggravating and mitigating circumstances for sentencing purposes may sometimes be unclear or even ambiguous. The essential point of distinction is whether, in a particular case, a fact or circumstance is likely to result in a more severe or less severe sentence than would otherwise be the case (Law [28]).
Ordinarily, where disputed facts are raised in a trial of issues, if a sentencing judge is not persuaded of the existence of a particular fact or circumstance, whether mitigating or aggravating, the absence of that fact does not mean that the converse fact is proved. In such circumstances the fact simply does not exist for the purposes of sentencing (Law (Buss JA) [34]). I will return to this issue in due course in considering the issue in the context of sentencing in relation to the offence of possession with intent to sell or supply to another.
In The State of Western Australia v Thompson [2014] WASCA 108, McLure P noted that when considering sentences imposed upon offenders in relation to offences for a breach of s 6(1)(a) of the MDA, the Court of Appeal has affirmed that dealing in drugs solely or primarily for commercial gain is an aggravating factor for sentencing purposes: see also The State of Western Australia v Andela [2006] WASCA 77 [14]. Furthermore, McLure P noted that drug users who offend to finance their drug habit did so in the context of an offence that had an element of commerciality and that in such circumstances it was not ordinarily mitigatory. Thus, the term commerciality has a wide meaning in the context of selling or supplying drugs.
In Thompson, McLure P [26] went on to note that:
The identification of the offender's precise intention under s 6(1)(a) of the Act is not an essential aspect of the sentencing process (Olbrich [13]), just as the quantity of the drug in the respondent's possession intended for his own use as distinct from its sale and/or supply is not an essential aspect: Duong v The State of Western Australia [2006] WASCA 110 [6]; Marker v The Queen (2002) 135 A Crim R 55 [114] - [116]. If the evidence does not enable the sentencing judge to make positive findings on these matters, the offender must be sentenced for the offence he committed, which is in terms of 'sale or supply'.
In this case, the issue to be determined is whether the offender's contention that she was acting as a bailee with an intent to return them to the owner can be sustained for the purposes of sentencing. If proved, it would be a mitigating factor. Since the State does not seek to prove an element of commerciality as an aggravating factor, the onus of proving this issue (as a mitigating factor) falls upon the offender. The standard of proof required to be satisfied by the offender is on the balance of probabilities.
The evidence on the trial of issues
At the commencement of the trial of issues, the State tendered the following exhibits without objection:
1.Statement of Paul Anthony Bott (police officer).
2.Photographs appearing at brief pages 13 to 18 showing the following:
•(page 13) black bag, pink rubber glove, tissue paper, belt and hat;
•(page 14) pink rubber glove, tissue, folded paper and torn clear plastic bag;
•(page 15) pink rubber glove and torn plastic bag;
•(page 16) pink rubber glove, unfolded paper note reading 'Liam RED DOG Mt Magnet **** *** 958' and also revealing a small clip seal bag with a white substance/object inside;
•(page 17) open metal tin revealing a quantity of a white substance;
•(page 18) a clip seal bag and a metal tin.
3.A bundle certificates of approved analyst being as follows:
(a)certificate relating to methylamphetamine powder weighing 1.96 g;
(b)certificate relating to methylamphetamine powder weighing 11.9 g at approximately 82% purity;
(c)certificate relating to methylamphetamine powder weighing 0.43 g;
(d)certificate relating to heroin powder weighing 0.51 g.
4.Statement of Luke Della Rosa (police officer).
5.Statement of Paul Francioni, security liaison specialist employed by the Telstra Corporation.
6.Bundle of photographs (pages 104, 105 and 106 of brief) showing various empty clip seal bags of varying sizes.
7.Download of text messages (pages 18 through to 100 of the download of the telephone seized from the offender).
8.Cover page and bank statement in the name of Ms L D Forrest.
9.A three page schedule of text messages prepared by the State.
Summary of the State's case
On Monday, 1 February 2016 police officers Senior Constable Paul Anthony Bott and Senior Constable Ian Cliffe were conducting traffic patrols in Karratha and surrounding suburbs.
Acting on information they had received about an allegedly intoxicated female driving a Toyota Hilux in the area near the Best Western Hotel in Karratha, they had cause to stop the vehicle driven by the offender. The offender was intercepted at about 11.10 am near Warambi Road in Karratha.
The offender was requested to undergo both a preliminary breath test and preliminary drug test. Whilst the preliminary breath test returned a negative result, the preliminary drug test returned a positive result. Consequently, the police detained the offender with an intention to convey her to Karratha police station to conduct further testing. The offender was behaving in a manner that appeared to the officers to be consistent with nervousness. She was also restless. According to Officer Bott, at the time that the offender was initially requested to undergo a preliminary breath test she appeared to be 'very nervous and wouldn't sit still and was wanting to go to the toilet' (see par 9 of statement of Paul Anthony Bott).
Shortly after stopping the offender's vehicle, the police officers discovered that the offender was travelling with a rabbit (named 'Piggy'). The rabbit was in the vehicle. The offender became extremely distressed about the rabbit's welfare when she discovered that she was to be detained and taken to Karratha police station for further testing. Consequently, the police officers agreed to drive her vehicle back to the police station so that the rabbit could be attended to.
The offender sat in the rear of the police vehicle driven by one of the police officers whilst the offender's vehicle was then driven to Karratha police station by the other officer.
Upon arrival at Karratha police station, as the offender alighted from the police vehicle, Officer Cliffe observed her to drop a small plastic bag containing a white substance that the police believed to be methylamphetamine. Later, upon analysis, it proved to be 1.96 g of methylamphetamine. Upon seizing and securing the item, Officer Cliffe cautioned the offender in usual terms. He also informed her of what he had seen her do (see par 25 page 4 of statement of Ian Andrew Cliffe). According to Officer Cliffe, in response the offender said 'the amphet is mine, I've got no more, it's just for me to use' (see par 26 of Officer Cliffe's statement). As a result of this, Officer Cliffe arrested the offender on suspicion of possession of an illegal drug.
Following the offender's arrest on suspicion of possession of a prohibited drug, a black bag in her possession was searched at Karratha police station. Inside that bag, Officer Bott located:
(a) a broken pink torn rubber glove containing:
(i)a ripped large clip seal bag which in turn contained 11.9 g of methylamphetamine at 82% purity; and
(ii)next to the 11.9 g of methylamphetamine a small clip seal bag wrapped in a torn piece of paper which contained 0.51 g of heroin;
(b)a small gold tin which contained 0.37 g of methylamphetamine; and
(c)several empty clip seal bags of various sizes.
According to Officer Bott, in relation to the heroin, the offender said 'I use it every day along with the methylamphetamine' (see par 19 of statement of Officer Bott).
Due to the offender's physical condition and obvious distress, police officers conveyed her to Nickol Bay Hospital. They formed the view that her health was deteriorating quickly (see par 30 of Officer Bott's statement). Ultimately, police received advice from Nickol Bay Hospital that the offender was quite ill and would be required to remain in hospital for a number of days.
In support of the State's contention that the court should reject the offender's assertion that she only intended to supply the drugs to her husband, the prosecution relies upon the combination of text messages sent and received from a phone said to be associated with the offender. The State submits that the combination of these text messages reveals that in the period between 19 December 2015 and 10 January 2016 the offender was involved in selling and supplying prohibited drugs, namely heroin and/or methylamphetamine, to others.
Given the fact that the text messages end approximately 11 days prior to the commission of the offence, it is not suggested by the State that any of the messages relate to the drugs in question. Rather, the State submits that the evidence amounts to propensity evidence and is admissible pursuant to s 31A of the Evidence Act 1906 (WA).
Pursuant to s 31A (2) of the Evidence Act, propensity evidence is admissible in proceedings for an offence if the court considers:
(a)that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and
(b)that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. The definition of 'propensity evidence' under the Act means:
(a)similar fact evidence or other evidence of the conduct of the accused person; or
(b)evidence of the character or reputation of the accused person or of a tendency that the accused person has or had.
In this case, the State says that the text messages amount to propensity evidence being evidence of the conduct of the offender in the lead up to the offence in question.
The history and the proper interpretation of this section has been dealt with by the Court of Appeal in Western Australia in multiple cases including Donaldson v The State of Western Australia [2005] WASCA 196; (2005) 31 WAR 122; Preston v The State of Western Australia [2012] WASCA 64; (2012) 220 A Crim R 347; and DKA v The State of Western Australia [2017] WASCA 44. Notably, more recently in Grant v The State of Western Australia [2017] WASCA 162, the Court of Appeal considered the question of text messages relied upon by the prosecution as propensity evidence pursuant to s 31A of the Evidence Act. In Grant, the accused objected to the admission of the messages into evidence on the basis that the messages were not proximate in time to the offence in question. Three years or more had elapsed between the date of the messages and the date of the alleged offence. It is well settled that evidence has probative value if the evidence could rationally effect, directly or indirectly, the assessment of the probability of the existence of a fact in issue. However, merely having probative value is not of itself sufficient to enliven s 31A of the Evidence Act. Section 31A(2)(a) also requires that the evidence have significant probative value. Significant probative value connotes importance or of consequence. In Grant, in considering whether or not the text messages had been properly admitted by the learned trial judge at first instance, the Court of Appeal came to the conclusion that they were relevant as they were 'capable of being interpreted as evidence not only that the appellant was a user of drugs, but that he had been in possession of the same types of drugs that were later found in his house' (Grant [49]). The Court of Appeal also referred to other cases involving evidence where there had been a lapse of many years, namely Preston v The State of Western Australia and Bennett v The State of Western Australia [2012] WASCA 70; (2012) 223 A Crim R 419. The issue of possession does not arise in this case. I note that the offender in this case does not dispute that she was in possession of the drugs in question. Rather, it is a question of whether she only intended to supply them to Mr Forrest. Nor did the offender object to the admission of the content of the telephone download.
In this case I am satisfied that the text messages do amount to propensity evidence and that they would (as distinct from could), either by themselves or having regard to the other evidence adduced in this case, rationally effect, to a significant extent, the assessment or the probability of the existence of a fact in issue, namely whether or not the offender was a mere bailee of the drugs in question.
If I am satisfied that the text messages do reveal that the offender had on earlier occasions sold or supplied drugs to others (apart from her husband), then they are relevant to the question to be decided in this case. I remind myself that even if I do conclude that the text messages have the character contended for by the prosecution, I cannot use that evidence in substitution for clear and cogent evidence proving that her possession of the methylamphetamine was with an intent to sell or supply to others (as opposed to acting merely as a bailee for Mr Forrest). Nor could I conclude that because she might have on other occasions sold or supplied prohibited drugs to others, that therefore on this occasion she was in possession of the 11.9 g of methylamphetamine with an intent to sell or supply the drugs to people other than George Forrest.
The text messages relied upon by the prosecution
In relation to the text messages that the State says evidence the offender's prior involvement in selling or supplying prohibited drugs, the State points to the following messages identified on exhibit 9 (reproduced as they appear in the download):
| Message number | Date | Time | From mobile number | To mobile number | Message content |
| 6 | 20/12/2015 | 03:29:57 | **** *** *61 | Offender | can I catch up need useuel |
| 8 | 22/12/2015 | 09:25:48 | **** *** *29 | Offender | If you can come up with some money toward the gates it would help me out heaps. |
| 9 | 22/12/2015 | 09:51:10 | Offender | **** *** *29 | I got nothing |
| 10 | 22/12/2015 | 10:51:47 | Offender | **** *** *29 | I gave all I had. Evmdn the last of it. |
| 11 | 22/12/2015 | 10:54:21 | **** *** *29 | Offender | Doesn't matter now. Got big job. |
| 12 | 22/12/2015 | 10:55:02 | **** *** *29 | Offender | Keep phone cleat please |
| 13 | 22/12/2015 | 10:55:58 | Offender | **** *** *29 | I am clean. |
| 14 | 22/12/2015 | 13:15:24 | Offender | **** *** *59 | Got gear. |
| 21 | 23/12/2015 | 17:08:56 | Offender | **** *** *93 | Hello matey. Its shadow. M4ht come for a drive. What do u rekon. Got s6mething nice for uq mama. I like her. |
| 31 | 25/12/2015 | 22:51:56 | **** *** *61 | Offender | Anything about |
| 32 | 26/12/2015 | 00:56:48 | Offender | **** *** *61 | U CAN CHUCK IN THE MORNING IF U WANT |
| 33 | 26/12/2015 | 02:33:12 | **** *** *61 | Offender | Yeah wat time |
| 34 | 26/12/2015 | 02:35:34 | Offender | **** *** *61 | LET U KNOW |
| 35 | 26/12/2015 | 18:03:51 | **** *** *29 | Offender | Breaky lunch or dinner |
| 36 | 26/12/2015 | 18:04:32 | Offender | **** *** *21 | LUNCH |
| 37 | 26/12/2015 | 19:08:40 | **** *** *61 | Offender | How'd u go |
| 38 | 26/12/2015 | 19:15:21 | **** *** *61 | Offender | Just getting coin now then Il call u thanx |
| 45 | 30/12/2015 | 19:57:24 | Offender | **** *** *20 | 13 BUCHS A BOTTLE |
| 46 | 30/12/2015 | 20:06:47 | **** *** *20 | Offender | I understand but before I say Y or no I need a sampke. and for that u nd to come here this way. do u agree?? |
| 47 | 30/12/2015 | 20:08:55 | **** *** *20 | Offender | Ho hard feelings but is only 2 people I can trust. You know who! |
| 48 | 30/12/2015 | 20:10:52 | **** *** *20 | Offender | And the simple min 1/2 g |
| 49 | 30/12/2015 | 20:13:05 | **** *** *20 | Offender | If yes and its all cool and ok smooth then we go ahead |
| 50 | 30/12/2015 | 20:15:12 | **** *** *20 | Offender | But why dmt u come here and talk to me face to face? |
| 51 | 30/12/2015 | 20:15:56 | Offender | **** *** *20 | LONG WAY |
| 52 | 30/12/2015 | 20:17:41 | **** *** *20 | Offender | Ok. then why u want to do that for me or for u.? |
| 53 | 30/12/2015 | 20:17:50 | Offender | **** *** *20 | I CANT GET SMALL. MIN 8 |
| 58 | 31/12/2015 | 12:56:36 | Offender | **** *** *89 | HEY AIDE. CALL ME. GOT LOVELY. |
The State also pointed to a series of text messages contained on exhibit 7 as being directly indicative of the offender's alleged prior drug dealing. These messages were as follows:
| Message number | Date | Time | From mobile number | To mobile number | Message content |
| 160 | 30/12/2015 | 19:30:33 | Offender | **** *** *93 | U STILL GOT THE AXES? HALF A NLP VODKA |
| 177 | 30/12/2015 | 17:48:52 | **** *** *93 | Offender | Who's this |
| 161 | 30/12/2015 | 17:54:43 | Offender | **** *** *93 | SHADOW |
| 176 | 30/12/2015 | 17:59:55 | **** *** *93 | Offender | What ya need have u that 100 from last time |
| 159 | 30/12/2015 | 19:40:46 | **** *** *93 | Offender | FAR OUT. EARLY OR LATE. |
The State also relies upon various text messages found at pages 62 and 79 of exhibit number 7 being message which included the words 'breakfast, lunch or dinner' and were to or from the number **** *** *29. The State submits that the words 'breaky', 'lunch' and 'dinner' were code used by the offender when purchasing drugs from her supplier. The supplier was the person using the number **** *** *29.
It should be noted that the offender admitted sending or receiving some, but not all of the messages. Her evidence was that whilst she had possessed the phone for a period of six to seven months, other people had access to her phone and used it from time to time. In addition, even where the offender admitted being the sender or recipient of a particular message, she denied that any of the messages related to her involvement in either selling or supplying prohibited drugs. In cross‑examination, the offender admitted having either sent or received the following messages:
•In relation to the messages contained on exhibit number 9, messages numbered 21, 25, 27, 58, 31 and 14.
•In relation to the messages contained on exhibit number 7, the offender admitted either sending or receiving the following: on page 46, message number 250; on page 47, message number 255; on page 83, message numbers 233, 234 and 235.
Despite the offender's denials, ultimately Mr Utting who appeared on behalf of the offender, properly conceded that on the objective evidence some of the messages may indeed have related to the sale or supply of a prohibited drug, namely heroin. He did not concede that any of the messages related to methylamphetamine (see ts 189).
Conclusions about the text messages
As already noted above, the offender admitted being in possession of the relevant mobile telephone for a period of about six to seven months. However, the offender said that other people had access to her mobile phone in that period. The phone was found in her possession on 1 February 2016. In relation to some of the financial transactions that appear on her bank statement (exhibit 8), namely deposits made by her daughter Holly in Toowoomba on 26 December 2015, their existence logically excludes Holly as a possible user of the phone at that time. I also note that the offender's evidence included that she was alone on Christmas Day. Given her admissions to either sending or receiving the messages identified above, I am satisfied beyond reasonable doubt that, despite her evidence that various other people may have access to her phone, it was in fact the offender that was sending or receiving the various messages on 24, 25 and 26 December.
Furthermore, given the offender's admission that she sent message number 58 on 31 December 2015 at 12:56:36 to her friend Aiden, I am satisfied beyond reasonable doubt that on that day she in fact sent various text messages from the phone to various people including a person using the mobile telephone number ending in '129'. However, I am satisfied beyond reasonable doubt that these messages relate to her attempt to obtain heroin, not an attempt to sell or supply methylamphetamine.
When it comes to the series of text messages being messages 45 through to 53 on exhibit 9, sent between 19:57:24 and 20:17:50 on 30 December 2015, I am satisfied beyond reasonable doubt that it was in fact her sending and receiving these various messages. The messages set out in exhibit 9 need to be considered in conjunction with the downloaded messages identified by the State on exhibit 7. I note that sent message number 161 (page 75 of exhibit 7) at 17:54:43 on 30 December 2015 identifies the person sending it as 'SHADOW'. Shadow is a nickname associated with the offender. Messages 159 and 160 (page 75 of exhibit 7) sent from the phone on the same day between 19:30:33 and 19:40:46 are so proximate in time to messages 45 through 53 on exhibit 9 that they lead to the irresistible conclusion that it was in fact the offender sending these messages. I am also satisfied beyond reasonable doubt that these messages relate to the offender discussing the sale or supply of a prohibited drug to somebody else. The language used in the context of the conversation is unmistakably code for drugs. I note some of the content includes: '13 BUCHS [sic] A BOTTLE'; 'I need a sampke [sic]'; 'And the simple min 1/2g'; 'I CANT [sic] GET SMALL.' However, I cannot be satisfied beyond reasonable doubt that these messages relate to methylamphetamine as opposed to heroin.
So far as the remaining messages are concerned, whilst many relate to drugs, I cannot be satisfied beyond reasonable doubt that they relate to the sale or supply of a prohibited drug as opposed to the purchase by the offender of a prohibited drug.
Ultimately, this leads to the conclusion that I am satisfied beyond reasonable doubt that, as at 30 December 2015 the offender had been involved at various times in either selling or supplying a prohibited drug, or offering to sell or supply a prohibited drug of some kind, at the very least being heroin.
The defence case
The offender gave evidence on her own behalf. As at 1 February 2016, the offender was 48 years old. By that stage she had been married to her husband George Forrest for approximately 16 years. There were no children of that union but she had a daughter, 'Holly', from a previous relationship. Holly was approximately 28 years old at the time of this offence.
By 1 February 2016 the offender's relationship with her husband had broken down. This was supported by some of the text messages and their content.
The offender gave evidence that she had been a drug addict since the age of 16. Her drug of choice was heroin. More recently however, she admitted that she had also used methylamphetamine. Despite her long‑term drug problems, the offender described herself as a 'functioning drug addict'. She operated machinery on gold mines and had done so for most of her adult life (see ts 49, evidence of the offender, 10 January 2018). She said that she had been gainfully employed operating machinery until she suffered a workplace injury sometime prior to September 2015.
According to the offender, she started taking methylamphetamine with her husband Mr Forrest about two years earlier. Mr Forrest had not touched drugs before the age of 50. Mr Forrest is a heavy duty electrician working on a fly in/fly out basis. Once he started using methylamphetamine his behaviour changed significantly. She saw her husband 'disintegrate before her eyes' (ts 50). He became violent towards her. He assaulted her on occasions and also raped her. There were numerous incidents of domestic violence.
The offender also gave evidence that at some stage prior to 23 September 2015 she had suffered a work injury. She fell from a height of about 3 m. This ultimately led to her inability to continue to work. On 23 September 2015 she was paid out the sum of $62,789.93 by way of compensation.
In the context of the breakdown of her relationship, the offender said that around Christmas time in 2015 she wanted to travel to Karratha to be with Mr Forrest. She wanted to go to Karratha to see if they could rekindle their relationship. According to her, Mr Forrest refused to allow her to come to Karratha at that time (see ts 51). Consequently, she spent Christmas and New Year alone. Eventually, she decided to drive up to Karratha. The drive from Perth to Karratha took about 20 hours.
According to the offender, she arrived in the Karratha area on the evening of 31 January 2016. She drove to Roebourne to see her niece. She collected her niece, spoilt her a bit by buying some clothes for her and then booked into a motel with her niece. Her plan at that stage was to put her niece in the motel and then drive out to see Mr Forrest that night.
As things transpired, the offender did not stay in the motel overnight but, during the early hours of 1 February 2016, drove out to Fortescue where Mr Forrest was working. She arrived at the Fortescue camp somewhere between 4.00 am and 5.00 am. She eventually saw Mr Forrest early that morning. He was angry. Mr Forrest went and had some breakfast whilst she went to the roadhouse and had a coffee. She decided not to attend the work mess where Mr Forrest was with the other men and instead sat in her car waiting for him to return. When he did return, she was seated in her vehicle, she said that:
He had a package with him and he – he threw it in the glove box through the passenger window. And he swore at me and he said 'go and get into a motel room in town and I'll be in there later and – and don't touch that'.
According to the offender, she understood that the package that Mr Forrest put into her glove box was in fact drugs. She said (ts 54) that when he put the item in the glove box:
He had something in his hand which was wrapped up a – in a glove, a cleaning glove, it looked like, a rubber glove. And I said 'what's that?' and he goes, 'it – meet me in town, get a motel room and don't touch that'. And he swore at me and I knew what it was.
According to the offender, she then returned to the motel in Karratha where she had left her niece. Because her niece had played up overnight, the offender had been 'kicked out of the motel' and had to collect her stuff from the reception. Shortly after leaving the motel, the offender was arrested by police officers Bott and Cliffe.
The offender did not deny that she was in possession of methylamphetamine and heroin. The evidence reveals that the various prohibited drugs were in four separate quantities being:
(a)a quantity of 11.9 g of methylamphetamine at 82% purity;
(b)heroin at 0.54 g;
(c)methylamphetamine in a smaller bag being 1.96 g; and
(d)methylamphetamine in a tin being 0.34 g of methylamphetamine.
According to the offender, she had purchased methylamphetamine prior to driving to Karratha. According to her evidence, she had brought two separate 1 g lots of methylamphetamine some time prior to leaving Perth. It should be noted that she said that she had consumed some of the methylamphetamine before her arrest. On any analysis of her evidence, she must have been in possession of more than 2.3 g of methylamphetamine prior to arriving in Karratha.
According to the offender, when she realised that she was going to be conveyed to Karratha police station, she placed all of the drugs down her pants.
The evidence of the police officers is set out in their written statements. The statements were tendered without objection and were not directly challenged. The police evidence is at odds with the offender's account of where the drugs were located.
In evidence‑in‑chief, the offender said that she grabbed the drugs that had been put in the glove box by Mr Forrest and 'put it down my clothes'. She also said that prior to going to the police station she dropped 'a bit at the scene out of her pocket' (see ts 55).
Later in cross‑examination, when asked about the drugs placed in the glove box by Mr Forrest, she confirmed that she put them down her pants. She positively denied that she put them in her handbag (see ts 134). She denied that there was anything else inside the glove apart from the drugs placed by there by Mr Forrest. She said that she put 'everything in my pocket and in my pants'. She said she put her own bag of methylamphetamine and the heroin in her pocket (see ts 134). She claimed that when she turned her pockets out, one of the bags, being the one that contained the 1.96 g of methylamphetamine, fell onto the floor (ts 135). She said that when she was at the police station she pulled out the drugs she had placed down her plants and put them onto the bench, albeit under a hat she placed there. The following questions and answers then occurred during the cross‑examination of the offender (ts 136):
Q:So you're saying at no time that police were with you, was any of that in your handbag?
A:No, I thought I had it all in my pocket.
Q:Where were you keeping your own meth and heroin, before police pulled you over?
A:Well maybe – yeah, in my bag.
Q:And you took it out of your bag and put it in your pockets?
A:Yeah, no – yeah, maybe, I can't remember. Maybe my bit was in my bag.
Q:But certainly your stuff never touched George's stuff?
A:No.
Q:And at that point - - - ?
A:In the scramble it was – it could have got all mixed up – yeah, in the scramble, yeah. I just – I just grabbed everything.
Q:Well, you said that you put your in your pockets?
A:Well there was one in there – there was on in my pocket and that got flipped out, so the other bit I had must have been in my bag, yeah.
Q:So you're saying your heroin and your small stash of meth were in your bag?
A:Yeah.
Q:And George's stash was down your pants?
A:Yes.
Q:And your - ?
A:I was stashed own my pants, yeah.
Q:Your – your big – your big bag of meth was in your pocket, that's now your evidence?
A:mm-hmm
Q:Your – your three different (something indistinct)?
A:I – I can't remember how it was. I can't remember how it was, but I handed it all out to them they got it all. And one – I can't remember, but one was in my pocket, that fell out. One was down my pants, but I put that under my hat and the other one was in my bag.
Q:OK and then at that point you were withdrawing from heroin, weren't you?
A:Yes.
Q:And you were really unwell?
A:Yeah I was going down yes.
I am satisfied beyond reasonable doubt that, apart from the 1.96 g of methylamphetamine which the offender either dropped onto the ground or accidently fell to the ground, the remaining drugs were all in her handbag. Significantly, I am satisfied beyond reasonable doubt that both the heroin and the larger quantity of the 11.9 g of methylamphetamine were contained in the pink rubber glove.
Given the location of the 11.9 g of methylamphetamine together with the heroin, I reject the offender's evidence that the 11.9 g was ever down her pants. I am satisfied beyond reasonable doubt that all of these drugs were together in her handbag. In my view, rather than concluding that the offender was deliberately evasive or tailoring her evidence, I am of the view that given her mental state at the time of the offence and the passage of time, her memory about these events is flawed and that she is an unreliable witness.
Was the offender a bailee of the drugs for George Forrest?
In relation to the question of whether or not the offender was a bailee of the drugs on behalf of her husband, the offender has failed to satisfy me on this issue on the balance of probabilities. In particular, I note the following:
1.The offender and her husband were estranged at the time of the offence. The nature of their relationship was one that included violence and distrust on the part of Mr Forrest.
2.There is no evidence that George Forrest knew that the offender was travelling to Karratha, let alone that she would be there on the morning of 1 February 2016. In fact, he had earlier told her not to come to Karratha.
3.Although I am satisfied to the requisite degree that she attended the Fortescue camp on the morning of 1 February 2016, I am not satisfied that Mr Forrest provided her with the 11.9 g of methylamphetamine.
4.The text messages between the offender and Mr Forrest indicate that there was a dispute about drugs between the two in late December 2015.
5.Her memory of events relating to this period of time is at best flawed. I accept officer Bott's account about the location of the various drugs. This includes that the heroin and the 11.9 g of methylamphetamine were both inside the pink rubber glove. The location of the heroin together with the larger quantity of methylamphetamine points strongly to an inference that she was keeping all of her drugs together.
6.Although Mr Utting had opened the offender's case on the basis that:
George was worried that his donga was going to be searched and he being a - he was a methylamphetamine user, quite heavy apparently - and he put his stash of methylamphetamine in the glove box of the car that Ms Forrest was driving.
there is simply no evidence of George Forrest's state of mind or belief that his donga was going to be searched.
7.The offender admits being in possession of 2.3 g of methylamphetamine that was not acquired from Mr Forrest.
Ultimately, as I have already noted, I cannot rely upon the offender's evidence about the circumstances in which she says she came to be in possession of the methylamphetamine. The offender's account is simply implausible in the context of the nature of the relationship that she then had with her husband. I reject her evidence that she was a bailee.
Intent to 'sell or supply', or 'intent to supply'?
Having rejected the offender's evidence that she was a bailee of the 11.9 g of methylamphetamine on behalf of Mr Forrest, it is still open to conclude that she did not intend to sell the drug, but rather intended to supply others, including Mr Forrest. Ultimately however, I am left in the position where I am unable to make positive findings on the precise identification of the offender's intention under s 6(1)(a) of the Act.
Consequently, in circumstances such as this, the offender is to be sentenced on the basis that she was in possession of the methylamphetamine with intent to sell or supply it to others (Thompson, McLure P [26]).
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