The State of Western Australia v Gorgievski
[2015] WADC 103
•2 SEPTEMBER 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL
LOCATION: PERTH
CITATION: THE STATE OF WESTERN AUSTRALIA -v- GORGIEVSKI [2015] WADC 103
CORAM: LEVY DCJ
HEARD: 17 AUGUST 2015
DELIVERED : 2 SEPTEMBER 2015
FILE NO/S: IND 208 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
AND
SASHO GORGIEVSKI
Catchwords:
Sentencing - Trial of issues - Possession with intent to sell or supply – Whether the offender did not intend to sell the drug - Offender required to prove mitigating factor on the balance of probabilities
Legislation:
Misuse of Drugs Act s 6(1)(a)
Sentencing Act s 15
Result:
Offender failed to discharge the onus of proof that he did not intend to sell any of the drug
Representation:
Counsel:
The State of Western Australia : Mr J S Goold
Defendant: Mr D A Fort
Solicitors:
The State of Western Australia : State Director of Public Prosecutions
Defendant: Fort Legal
Case(s) referred to in judgment(s):
Law v The State of Western Australia [2009] WASCA 193
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281
The State of Western Australia v Thompson [2014] WASCA 108
LEVY DCJ:
The charge
Mr Sasho Gorgievski has pleaded guilty on indictment 208 of 2015 that on 29 August 2014 at Abbey he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply to another. The total amount of methylamphetamine involved was 11.63 g. The bulk of the methylamphetamine had a purity of at least 71%.
The plea of guilty
On 18 June 2015 Mr Gorgievski appeared before me at a sentencing hearing. On this occasion he entered a plea of guilty to the charge on the indictment, but submitted that he only intended to supply some of the drug to another. He submitted that he intended to use some of the drug and supply some of it to a friend. The State did not accept Mr Gorgievski's proposed basis for sentencing. Accordingly the matter was listed for a trial of issues before me.
The trial of issues
On 17 August 2015 the matter came on before me for the hearing of the trial of issues. Mr Gorgievski maintained his position that he only intended to supply some of the drug to his friend, Ms Jay Lee Bradbury. The State did not seek to prove, as an aggravating factor, that Mr Gorgievski had some commercial intent with respect to the drugs in question. Nonetheless, the State did not accept Mr Gorgievski's contention.
The law is that where an offender seeks to have a sentencing judge take a matter into account in passing sentence, it is for the offender to bring the matter to the attention of the judge and, if necessary, to prove that matter on the balance of probabilities: R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 281 [25], [27]; Law v The State of Western Australia [2009] WASCA 193 [33] - [34] Buss JA.
The State's position was in line with the High Court's decision in Olbrich. Thus, the issue to be determined was whether I was satisfied, on the balance of probabilities, that Mr Gorgievski did not intend to sell any of the prohibited drug.
Prosecution evidence on the trial of issues
The State called two witnesses on the trial of issues, being Senior Constable Brent Robert Wallhouse and Detective Senior Constable Robert Anthony Bove.
Brent Robert Wallhouse
Senior Constable Wallhouse was stationed at Busselton Police Station in August 2014. On 29 August 2014, he and other officers executed a Misuse of Drugs Act 1981 search warrant at unit 271, 595 Bussell Highway in Abbey. The unit was part of the Abbey Beach Resort. Upon entering the unit, police officers located Mr Gorgievski as well as a woman identified as Jay Lee Bradbury.
When the unit was searched, police officers located the following: two clip seal bags containing methylamphetamine weighing 0.9 g and 0.2 g. Three further plastic clip seal bags containing methylamphetamine being 5.69 g at 83% pure, 1.68 g at 71% pure, and 3.16 g at 75% pure. (The certificates of analysis relating to these drugs were tendered and became exhibits numbered 1 and 2 on the trial of issues); electronic scales capable of weighing very small quantities; numerous unused clip seal bags - estimated by Senior Constable Wallhouse to be about 30 in number; two small quantities of cocaine ( Mr Gorgievski was charged with simple possession of these drugs); a large number of syringes in a bucket; $1,650 in cash found in his wallet; and two mobile phones associated with Mr Gorgievski.
Both of the phones were downloaded. There was nothing found in the data that would indicate that Mr Gorgievski was in possession of drugs with an intent to sell them to another.
The search of the unit was electronically visually recorded. The DVD of the search became exhibit 3. Mr Gorgievski was asked a number of questions during the course of the search. When asked about the clip seal bags containing white powder, whilst he did not acknowledge that the drugs belonged to him, he did tell the officers that he was a drug user.
In relation to the large number of syringes located by police, I note that Mr Gorgievski subsequently gave evidence during the trial of issues and said that there were approximately 100 – 120 syringes. Of these, about four had been used the previous evening.
Robert Anthony Bove
Detective Senior Constable Robert Anthony Bove gave evidence as a drug expert. Detective Bove had about seven years' experience with the Western Australian Police Service, five years as a detective for five years. He was currently based at the Organised Crime Squad. He had been involved in the execution of over 50 search warrants in relation to methylamphetamine. Detective Bove, apart from his policing knowledge and training, had completed a diploma in public safety and an advanced diploma in public safety; a drug investigator's course; and a clandestine laboratory course. Detective Bove had gained knowledge about methylamphetamine from his every day investigations and through the course of his duties at Organised Crime.
Detective Bove gave opinion evidence about the weight and quantities of methylamphetamine commonly used by users of the drug. The drug is commonly used in 'point' form. A 'point' meant 0.1 of a gram. In his opinion, a user may use up to a gram a day. He said 'anything above that would be quite significant and depending on the purity could have quite a detrimental effect (on the user)' (see ts 35, 17 August 2015).
Detective Bove gave evidence as to the weight and price that methylamphetamine was commonly sold. Methylamphetamine was commonly sold in points, grams, balls (3.5 g), half weights being half a gram. The price of methylamphetamine at the relevant time was: 0.1 of a gram for $100; a ball or 3.5 g, around $2,000; an ounce or 28 g, approximately $10,000 ‑ $12,000. Prices, in his opinion, were always subject to supply and demand. Detective Bove gave his opinion of the approximate monetary values for the methylamphetamine being: 5.69 g of methylamphetamine at 83% pure was about $3,500; 3.16 g at 75% purity was between $1,800 ‑ $2,000; and 1.68 g at 71% purity, roughly $1,200. Thus, on the evidence of Detective Bove, the amount of drugs in the possession of Mr Gorgievski at the time the police executed the search warrant was valued at between $6,500 ‑ $6,700.
The offender's case on the trial of issues
Mr Gorgievski gave evidence on his own behalf. He was residing at Serenity Lodge (a drug rehabilitation centre). He is 42 years old. He had been using drugs since before he turned 20. He had two children from a previous relationship, the eldest being a daughter aged 13.
He gave evidence about his income, with reference to his bank statement, for the period between 21 March 2014 ‑ 20 September 2014. In that time he received some Centrelink payments ($519.20 on 8 June 2014) but at some stage was 'cut off [the] dole for a little bit' (see ts 47, 17 August 2015). He also did some 'cash jobs' as a mechanic for family and friends. The work was intermittent. Sometimes he would do two or three jobs in a week, and other times none.
With reference to his bank statement, he explained that on 5 May 2014 a friend deposited the sum of $1,000 into his account so that Mr Gorgievski could purchase a Hughes Engine from America. The engine was to be fitted to a Chrysler V8 motor vehicle which he was modifying for the friend. On 20 May 2014 he purchased the Hughes Engine via PayPal for $516.13. Mr Gorgievski was allowed to keep the balance being $483.87.
In relation to the cash that he received from the work he did, he said he would simply save the money and when he had enough, he would go down south and see his girlfriend. His evidence was that he little or no expenses at the time because he was living with a friend as his carer; did not pay any rent; would either eat at his mother's house or eat at Joseph's (the 76‑year‑old man whom he cared for). When he had the care of his children, he would stay at his mother's place who would do the cooking. He also said that his father had paid his registration on his motor vehicle. He said that he did not have much to spend money on, so he saved every cent that he could. Nowhere in his evidence did he ever inform the court of how much money he received from the 'cash' jobs he did for family and friends.
In relation to his arrest in Busselton at the Abbey Beach Resort he said that he had saved the money to go down to have a week with his girlfriend, Jay Lee Bradbury. He said that at the time he was having a sexual relationship with Ms Bradbury.
He said that around about this time he was also seeing another female. Her name was 'Sis'. He said he had a sexual relationship with this female. He said that she was married and that the affair had been ongoing for three to four years.
In the period leading up to his arrest at Abbey, he was using methylamphetamine every day. He was getting the drugs from 'Sis'. He said that he did not have to pay for the drugs, but if he did, she would give him substantially larger quantities of methylamphetamine than he had paid for. He would get drugs from 'Sis' at different times. Sometimes it would be every two weeks, sometimes every six weeks.
In cross-examination, Mr Gould for the prosecution explored the subject of 'Sis' and how Mr Gorgievski obtained the drugs from her. I found Mr Gorgievski's evidence to be unconvincing in relation to this topic. He was vague about the circumstances in which the methylamphetamine was supplied to him. He was unable to say how, or in what quantities, the methylamphetamine was supplied to him, even in general terms (ts 68 ‑ 69, 17 August 2014).
He said that around about at the time he had friends whom he had known for 20 years. They were users of methylamphetamine. They had always worked and so had he. They would buy drugs together once a week. Sometimes he would get drugs from friends; they would give him a bit and he would give them a little bit if they had it. Sometimes they would all 'chip in together' a 'couple of hundred' each and purchase the drug together (ts 72, 17 August 2015).
Mr Gorgievski said that he had liaisons with Ms Bradbury in Busselton. They initially stayed in a caravan park, but the owner did not want Ms Bradbury there. Subsequently they 'started staying at hotels every time [he would] go down [to Busselton]' (ts 56, 17 August 2015).
Mr Gorgievski said that allied to the use of methylamphetamine he developed a sex addiction. He said that taking methylamphetamine developed his sex addiction. Consequently, he had two addictions: sex and methylamphetamine. Prior to going into rehabilitation, it was the sexual addiction that was more difficult to 'let go of' (ts 57, 17 August 2014). If he had sex three times a day, it would mean that he took drugs three times that day.
Mr Gorgievski said that he had been using methylamphetamine on a daily basis for 'probably nine years'. As far back as eight years ago, he was using a gram a day (ts 57, 17 August 2014). The minimum that he used a day was 3 points or 0.3 g. The amount he used depended upon how much sex he had a day (ts 61, 17 August 2014).
Search of the unit at the Abbey Beach Resort
According to Mr Gorgievski, he had saved money and drugs to have a week down south with Ms Bradbury. He had saved a week's worth of drugs. By this he meant the quantity of the drug found at the time that police executed the search warrant, namely 11.63 g of methylamphetamine. I note his evidence that he and Ms Bradbury had one or two shots before the police arrived. Consequently, he must have possessed more than 11.63 g of methylamphetamine when he first attended the unit.
He was not only supplying the methylamphetamine to be used by him and Ms Bradbury, but was also going to be paying for the accommodation.
He had purchased the unused plastic clip-seal bags so that he could use them to mix the methylamphetamine with water. This was done for hygiene reasons. He would put half a gram in the bag, mix it with water and then inject the mixture intravenously. A syringe contained 100 units. He would use 60 units and Ms Bradbury 40 units. He and Ms Bradbury may have used four syringes the previous night.
Mr Gorgievski denied any intention to sell any of the drugs found in his possession on 29 August 2015.
Exhibit 4 – Kirstin Bouse dated 10 April 2015
By consent, I received a report of Kirstin Bouse, clinical and forensic psychologist, dated 10 April 2015. The report was prepared on the basis of:
(a) an interview conducted by Ms Bouse with Mr Gorgievski on 24 and 26 March 2015 for a total of 3 hours and 10 minutes;
(b)review of psychometric testing procedures administered as part of the interview on 24 March 2015; and
(c)review of Mr Gorgievski's criminal history and the statement of material facts relating to this matter.
It is clear that most of the information relied upon for the preparation of the report came directly from Mr Gorgievski. Nonetheless, Ms Bouse is experienced and appropriately qualified to form the opinions that she did (see last page of her report).
The information contained in the report relating to Mr Gorgievski's background, including his substance abuse, was generally consistent with Mr Gorgievski's evidence. I do note that whilst the relationship with Ms Bradbury is inferentially referred to in the report, there is no reference to Mr Gorgievski's relationship with 'Sis'. Mr Fort, counsel for Mr Gorgievski, submitted that the report writer must have confused the information about the two relationships.
Ms Bouse suggests in the report that 'Mr Gorgievski's substance use is inextricably intertwined with his sexual behaviour'. Ms Bouse went on to note that
both behaviours have similar impacts on an individual's neurobiology such that they activate areas of the brain that release pleasurable 'chemicals'. This adds further weight to the physiological addiction that Mr Gorgievski evidently experiences.
(See exhibit 4, par 32).
Findings of fact on the trial of issues
I am satisfied, on the balance of probabilities, of the following:
1.Mr Gorgievski was, at the time of his arrest, addicted to methylamphetamine and that he had some form of disorder causing him to have an unnaturally high desire to engage in sexual activity.
2.In the months leading up to 29 August 2015 he was using between 0.3 g and 1 g of methylamphetamine on a daily basis.
3.In relation to the 11.63 g of methylamphetamine found in his possession at the unit at the Abbey Beach resort, he intended to use a significant portion of the drug himself and supply a significant, albeit lesser quantity, of the drug to Ms Bradbury.
In considering all of the evidence as a whole, I note that parts of Mr Gorgievski's evidence lacked credibility. On his own evidence he had a methylamphetamine addiction at the level where he must have been consuming methylamphetamine valued in the tens of thousands of dollars annually. If he was to be believed, he had little or no regular income or ability to buy the drugs, and the drugs were, by and large, supplied to him for nothing or close to it by someone called 'Sis' in quantities that he was unable to articulate. Additionally, despite his lack of regular income, he was found in possession of methylamphetamine worth approximately $6,500 and $1,650 cash. On his evidence he intended to spend the week at the Abbey Beach Resort or another hotel in Busselton. He was going to pay for the accommodation. This particular trip was one of a number of similar such trips that he had undertaken previously. His evidence about his income, the source of his drugs, and his explanation for his ability to be in possession of the drugs and the cash lacked any real credibility.
I note that in The State of Western Australia v Thompson [2014] WASCA 108, McLure P said [26]:
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] WASCA 282; (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'.
Conclusion
I have already identified those facts raised by Mr Gorgievski in mitigation that I am satisfied of on the balance of probabilities. I am satisfied on the balance of probabilities that most of the methylamphetamine was intended to be used by Mr Gorgievski and Ms Bradbury. Ultimately however, I am unable to determine what Mr Gorgievski's intention was with respect to all of the 11.63 g found in his possession. In all the circumstances and particularly the quantity and very high purity of the methylamphetamine, together with the cash, scales and large number of clip-seal bags, I am not satisfied on the balance of probabilities that Mr Gorgievski did not intend to sell any of the methylamphetamine found in his possession. Consequently, I intend to sentence Mr Gorgievski for the offence he committed, which is in terms of 'sale or supply'.
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