The State of Western Australia v Jovanovich

[2013] WADC 191

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- JOVANOVICH [2013] WADC 191

CORAM:   O'NEAL DCJ

HEARD:   28 OCTOBER 2013

DELIVERED          :   6 DECEMBER 2013

FILE NO/S:   IND 679 of 2013

IND 680 of 2013

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

MIKI JOVANOVICH

Catchwords:

Possession of the drug with intent to sell or supply - Trial of issue of intention of possessor following plea of guilty - Turns on own facts

Legislation:

Nil

Result:

Findings of fact as set out

Representation:

Counsel:

The State of Western Australia  :    Mr D J Thiering

Accused:    Mr L M Levy SC

Solicitors:

The State of Western Australia  :    Director of Public Prosecutions

Accused:    David Manera

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

1. O'NEAL DCJ:  Miki Jovanovich has pleaded guilty to three drug offences contained in two different indictments.

2. Indictment 680 of 2013 contained two counts, one of cultivating cannabis with intent to sell or supply to another, and one of possessing cannabis with intent to sell or supply to another.

3. Indictment 679 of 2013 contains a single charge of possessing methylamphetamine with intent to sell or supply to another.

4. With respect to the charge of possession of methylamphetamine however, Mr Jovanovich asserts that he honestly believed that the prohibited drug was a derivative of cannabis, cannabis oil and not methylamphetamine.  That is the primary issue for me to determine.  He also claimed that at the time of the offence he intended to use some of the drug, the derivative of cannabis, himself, and supply some to others.

5. On 28 October 2013 I heard a trial of issues in order to determine those matters with respect to indictment 679.

6. The background with respect to the charges is as follows.

7. One 29 June 2012 the police executed a search warrant at a property at 7 Moresby Close, Bibra Lake.  The property, as can be seen in the search video that was tendered, is a residence and it was occupied by Mr Jovanovich, his wife and children.

8. During the search of Mr Jovanovich's home police found 5.6 kg of cannabis of which about 5 kg was head material, that is, high-quality cannabis, not leaves and stems.

9. The 5 kg of head material was spread out on trays in a room provided for that purpose.  The arrangement showed a degree of sophistication and organisation.  This cannabis is the subject of the possession count in indictment 680.

10. It is the case that Mr Jovanovich almost immediately took responsibility for possession of the cannabis found in the drying room.  Given what was found in his house any attempt to deny knowledge of its existence and nature would have been untenable to say the least.  What he did do however was repeatedly assert that all of the cannabis was for his personal consumption.  He allowed as to how if someone came over to his house he would offer them a smoke but he denied selling cannabis.  He explained that, what with the cost of cannabis, he thought that he would just grow one large lot and put it away, taking it out as he needed.  He said he hoped that it would last him the year.  That optimism was well founded, unless he was smoking more than a half an ounce of bud cannabis each day.

11. It is now accepted on behalf of Mr Jovanovich that in fact his intention with respect to the cannabis was a commercial one.  The admission is a sensible one given that everything about the circumstances surrounding the possession of this cannabis points to an organized commercial effort, notwithstanding the earlier denials of Mr Jovanovich.  The area of his garage where he had been trimming the heads from stock in leaf material can be seen in the search video.  It is neatly organized, with two pairs of light secateurs rinsing in a bucket of water.  There is a box of rubber gloves, two pairs of which are visible in the work area.  There is a box of moderate size clipseal bags.  There is a set of digital kitchen scales.  When Mr Jovanovich is called upon to explain the scales and what they were used for, he rather struggles until he finally allows that the officers would know what the scales are used for.

12. The drying room that Mr Jovanovich admits that he built is quite a neat and sophisticated structure.  There appears to be insulation and the room is sealed to prevent vapour and odour from escaping.  A filtered extraction system removes air from the room while reducing the odour.

13. The sheer amount of cannabis that can be seen neatly spread out over four large trays makes the claim of personal use at least faintly humorous.  The falsity of Mr Jovanovich's claims was further exposed however by the revelation of the existence of a hydroponic growing operation in a sea container in a workshop unit in Wellard Street.  Another crop was found growing there.  The attendance of Mr Jovanovich and others at the unit had been covertly recorded by the police.  This crop formed the basis of the other charge on indictment 680.

The dish

1. Later in the day, after searching the Wellard Street unit, the police returned for a second look at Mr Jovanovich's house.  This time police found what appeared to be a cooking or baking dish with a sealing lid.  The dish is about 225 mm long by 160 mm wide.  It looks like the kind of dish that could on one hand be used for cooking, in particular in a microwave oven, and then used for food storage in a refrigerator or freezer.  This dish was found inside a box in the top of the cupboard in a walk-in linen wardrobe connected to the master bedroom.

2. On the search video Mr Jovanovich is asked what it is and he replies, 'it's just oil in methylated spirits'.  He says, 'so once the metho dries the liquid – like oily based hash oil sort of stuff'.  He's asked, ‘so it's hash sort of resin or?'.  And he answers, 'yeah, yeah, yeah'.  The exhibits officer duly records this on the exhibits log as, 'cannabis resin'.

3. Mr Jovanovich is asked, 'so what's the methylated spirits for?'.  He explains that it was 'just to wash the resin in cause that's the only thing that'll wash, wash it out … I got all the print-up off the Internet so...'.

4. The contents of the baking dish were tipped into an exhibit jar which was sent to the Chemistry Centre for analysis.  There are photos of the liquid.  It looks to be the colour of separated egg whites.

5. As it turns out there was no cannabis, no THC, no resin and no methylated spirits in the liquid in the baking dish.  Instead it consisted of about 158 g of 100% pure methylamphetamine in solution in what was mainly water with some residual acetone and toluene.

6. According to Ms Lucinda Brown from the Chemistry Centre, based on her expertise in the subject of illicit drugs and drug manufacture, methylamphetamine will sometimes be dissolved in water after the manufacture process.  The water is allowed to slowly evaporate and the more slowly it evaporates the larger the crystalline structure of the methylamphetamine that is left.  It is of course virtually impossible for the ordinary illicit manufacturing processes to produce 100% pure methylamphetamine, but the analysis and testing of the liquid produces that measurement.  In reality the manufacturing process usually results in methylamphetamine of 80% purity or thereabouts.  Ms Brown explained that in effect if all the liquid had been allowed to evaporate the crystalline powder that would have been left would have weighed more than 158 g and would have been of a lesser purity than 100%.  A final product of 80% purity would have weighed on my calculations just short of 198 g.

7. There was evidence at the hearing that in 2012 a gram of methylamphetamine would sell for $500 ‑ $800.  The witness who gave evidence to that effect, based on a Western Australia police database, was seemingly unable to give evidence as to what purity might be expected in methylamphetamine sold by the gram and his evidence about prices showed a rather surprising degree of variability between examination‑in‑chief and cross‑examination.  I do not have regard to evidence that has been before me on other occasions that puts prices into a narrower range and specifies the average range of purity for seizures of that kind.  Based however on the evidence before me on the trial of issues there was conservatively $100,000 worth of methylamphetamine in the baking dish in Mr Jovanovich's wardrobe.

8. To the extent that he offered an explanation for it at all he seemed to be suggesting that he was somehow knowledgeable about the manufacture of the contents of the baking dish and in particular that the solution was still in the process of manufacture.

9. It was the case that the solution was in process.  As Ms Brown said, the liquid was saturated, that is, the liquid was incapable of holding any more of the solid material in solution at room temperature, such that the solid content was coming out of solution and forming crystals.  Cannabis or hash oil does not behave in that way; it does not form crystalline powder.

10. When the sealed exhibit bags were received at the Chemistry Centre with both the exhibit jar of the solution and the baking dish and lid it was obvious that a significant amount of white crystalline powder had accumulated in the bottom of the exhibit bag.  Indeed when the police showed Mr Jovanovich the baking dish when it was first seized, traces of white powder were visible on the rim of the dish.  Needless to say subsequent analysis of this white powder showed that it contained methylamphetamine.

11. Submissions filed on behalf of the offender accept that it is for Mr Jovanovich to establish on the balance of probabilities a belief that the liquid contained cannabis oil as opposed to methylamphetamine.  Mr Jovanovich did not give evidence before me.  The only evidence of any significance to that effect is the assertions of Mr Jovanovich when confronted with the baking dish in the course of the search.  While he was not of course under oath on that occasion that is evidence that it is open for me to accept if I were to conclude that it was credible.  I do not.

Credibility

1. With respect to Mr Jovanovich's credibility it is the case that he makes a number of admissions to the police who were searching his house.  In particular he makes admissions with respect to his possession of the cannabis.  It is also the case however that the evidence of possession of the cannabis found in a specially constructed room of his house is overwhelming.  It is a case where, with respect to the issue of possession, resistance would be futile.  I am not satisfied, as was submitted to me, that Mr Jovanovic's lies to police can be explained by a desire on his part to protect others associated with the cultivation.  I am satisfied however that he was untruthful in speaking to the police about his intention with respect to the cannabis.

2. At other times in the interview Mr Jovanovich exercises his right to decline to answer questions, such as the first time he is asked where the cannabis in his house has come from.  Later, after the police have found the key to a storage unit on Wellard Street which they know from surveillance has been used for a hydroponic growing operation, he is asked again if the cannabis comes from the unit.  This time he admits that it did.  It appeared to me that admissions were made by Mr Jovanovich when silence or denial was obviously futile.

3. His hesitation and his difficulty in explaining why a set of digital kitchen scales are found in his work area, close to the boxes of block bags and rubber gloves was rather telling.  When he was first asked if he was currently employed, just after police counted out $750 in $50 bills found in his bedroom, he says 'no'.  He then corrects himself and says that in fact he is employed in the family café business at $800 a week.  The idea that he would not remember immediately if he was employed when asked is odd to say the least.

4. His manner throughout the search recording is most unconvincing.  While he asserts that the baking dish contains cannabis oil and he offers some explanation of the process of manufacture, there is no explanation as to how such a quantity of a highly valuable drug comes to be in his cupboard, nothing that suggests how it is that he could be mistaken about the character of it.  I do not accept his denial of knowledge of the character of the $100,000 or more worth of methylamphetamine found in his walk-in robe.  I am not satisfied that he believed that the baking dish held cannabis oil.  To the contrary, I am satisfied beyond reasonable doubt that he knew that the drug was methylamphetamine.  That is the only reasonable inference available here.  I conclude that he hoped to mislead police if he could, at least as to his knowledge.

5. It follows that I reject Mr Jovanovic's claim that he intended no more than a gratuitous supply of the drug in the dish to friends.  Given his admission that his involvement in the distribution of cannabis was a commercial one, there is no reason to think that he would be gratuitously supplying methylamphetamine.