The State of Western Australia v Lenane - [2021] WADC 81

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LENANE [2021] WADC 81
CORAM:   LEMONIS DCJ
HEARD:   20 & 21 JULY 2021
DELIVERED          :   20 AUGUST 2021
FILE NO/S:   IND 1250 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
AND

RORY PAUL LENANE

Catchwords:

Trial of issues - Offender in possession of methylamphetamine - Consideration of offender's intent in respect of that methylamphetamine

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Relevant intent determined

Representation:

Counsel:

The State of Western Australia	:	Mr D A J McDonald
Accused	:	Mr T F Percy QC

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	A1 Legal

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

Law v The State of Western Australia [2009] WASCA 193
The State of Western Australia v Thompson [2014] WASCA 108

LEMONIS DCJ:

These reasons are in respect of a trial of issues conducted over two days.
The trial of issues relates to Mr Lenane's plea of guilty to count 1 on the indictment, being that on 25 July 2019 at Mount Lawley he had in his possession a prohibited drug namely methylamphetamine with intent to sell or supply it to another. This is an offence under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
The methylamphetamine comprises two amounts, which were found by police in a container in an unlocked open safe in the laundry cupboard of Mr Lenane's home, being:
1.a clip seal bag containing 27.7 g at 49% purity; and
2.a clip seal bag containing 3.25 g at 48% purity.
Mr Lenane entered his plea of guilty on the basis that he admits that he intended to supply three‑quarters of the parcel of 27.7 g of methylamphetamine to three others in equal portions, so one quarter each. The remaining quarter he was to retain for his own use. Further, in respect of the 3.25 g parcel, Mr Lenane entered his plea of guilty on the basis that he intended to supply these drugs to one of the three others. Mr Lenane gave evidence at the trial of issues.
The State contends that Mr Lenane intended to sell a portion of the drugs to others, and use the balance. Accordingly, the State contends that Mr Lenane was in possession of the drugs for commercial gain.
While Mr Lenane's plea of guilty constitutes an admission by him of the elements of the offence, it does not constitute an admission by him of the State's contention that he intended to sell a proportion of the methylamphetamine.
It is well established that if the State seeks to have the sentencing judge take into account a matter which increases the culpability of the offender, the State must establish that matter beyond reasonable doubt. In my view, the State's contention that Mr Lenane intended to sell a portion of the methylamphetamine does increase his culpability because it results in him being in possession for commercial gain which would ordinarily result in a more severe sentence. Accordingly, the State must prove that beyond reasonable doubt.
On the other hand, that Mr Lenane intended to supply the methylaphetamine, must be established by him on the balance of probabilities. In that respect, such an intent reduces his culpability and would result, if proven, in a lesser sentence.
Further, if I am not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, whether adverse to or in favour of the offender, as the case may be. Where a sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing.[1]
[1] Law v The State of Western Australia [2009] WASCA 193 [34].
An interesting point was raised by Mr Percy QC that if I am not satisfied beyond reasonable doubt as to the State's position, then I must sentence Mr Lenane on the basis that he only had an intent to supply, irrespective of whether I accept or reject the defence case on supply. My initial reaction to this proposition is that it is inconsistent with The State of Western Australia v Thompson.[2] However, given the findings I have come to as explained below, I consider I do not need to resolve this issue.
[2] The State of Western Australia v Thompson [2014] WASCA 108 [26].

State and defence case

The State's case is that Mr Lenane was a low-level user/dealer and thus intended to sell some of the methylamphetamine found in his possession and use the balance. As I understand it, the State's case is that:
1.I should reject Mr Lenane's evidence as to the circumstances in which he came into possession of the methylamphetamine.
2.I can be satisfied beyond reasonable doubt that at the time Mr Lenane was found in possession of those drugs he was a low‑level dealer of drugs. The State's case in this respect is a circumstantial case based upon all the circumstances that existed at that point in time. So, the State says that the only reasonable inference from all of the circumstances taken as a whole is that Mr Lenane was a low‑level drug dealer at the time.
3.Accordingly, the State says, I can be satisfied beyond reasonable doubt that Mr Lenane intended to sell a portion of the methylamphetamine found in his possession.
I must be satisfied that the inference which the State asks me to draw is the only reasonable inference or conclusion that can be drawn consistent with the proven facts. And, for an inference or conclusion to be reasonable, it must rest upon something more than mere conjecture.
In applying inferential reasoning, I do not consider the facts in isolation; rather, I consider them as a whole to determine whether the inference contended for by the State is the only inference reasonably available. So, circumstantial evidence must not be considered on a piecemeal basis; it must be evaluated in its entirety.
The effect of Mr Lenane's evidence was that:
1.Another person whose Christian name was James suggested to Mr Lenane that James, Mr Lenane and two others go in on the purchase of an ounce of methylamphetamine for $4,000, with each contributing $1,000 and receiving one quarter of the purchased amount, so that is 7 g.[3]
2.In the very early hours of the morning on the day of the execution of the search warrant, James arrived unexpectedly at Mr Lenane's house, gave Mr Lenane the ounce and said he and the others would meet up the next day at Mr Lenane's house to divide it up. At the same time James also gave to Mr Lenane the smaller parcel of drugs, being the 3.25 g parcel, which James was to collect the next day.[4]
3.Mr Lenane did not sell drugs and was not a drug dealer.[5]
[3] ts 144 - ts 145, ts 148.
[4] ts 146.
[5] ts 147.
If I am satisfied on the balance of probabilities as to Mr Lenane's version as to how he came to be in possession of the subject drugs, then I would be satisfied that Mr Lenane intended to use 7 g of the drugs, and the balance of the 21 g comprising the larger parcel would be divided up between James and two others, and the 3.25 g parcel would be given back to James. Thus, Mr Lenane would not have an intent to sell any of the drugs.
If I do not accept Mr Lenane's evidence as I have outlined, but consider that it might be true, then I cannot be satisfied beyond reasonable doubt that Mr Lenane had an intent to sell any of the methylamphetamine.
If I reject Mr Lenane's evidence, then I put that to one side and consider the State's case on the basis of the evidence that I do accept.

Evidence

I now turn to the evidence. The State called:
1.Constable Hague, who is the investigating officer and also the officer primarily responsible for the conduct of the search at Mr Lenane's house. Constable Hague gave evidence regarding the search. He was also cross-examined about matters pertaining to his knowledge of drug dealing in general.
2.Detective McDougall, who was also present on the day of the search. Detective McDougall gave evidence pertaining to his knowledge of drug dealing in general. He was not cross‑examined.
The defence called Mr Lenane.
A number of exhibits were also tendered. These comprised an edited video of the search, messages found on Mr Lenane's phones and the data access orders made in respect of those phones, exhibits pertaining to what was located at Mr Lenane's house during the search and exhibits pertaining to Mr Lenane's financial position.
In assessing the evidence, I take account of the following matters:
1.my impression of each witness;
2.the consistency of each witness's evidence throughout their questioning by both counsel;
3.the consistency of the evidence with other evidence that I accept, including the exhibits; and
4.the plausibility of the evidence.
In addition, I do not have to accept all of a witness's evidence and may accept a part of a witness's evidence and reject parts of their evidence.
In relation to Detective McDougall's evidence and also that part of Constable Hague's evidence relevant to drug dealing generally, I treat this evidence as being evidence of an expert nature. Even though it is expert evidence it is still evidence and I am to decide whether I accept or reject it and what weight to give to it.
I consider the following matters are not controversial.
At the point in time of the search, Mr Lenane was a heavy drug user, using methylamphetamine, ecstasy, cocaine, LSD, ketamine and cannabis.
Mr Lenane was present in the house at the time that police entered the house. There were two other men with him, one being Mr D who is saved in one of the phones as a contact under the name Daymo. The other person was a Mr H. They were all using drugs.
Shortly after police arrived, Mr Lenane had a panic attack and was taken to hospital by ambulance.
Shortly after the search commenced, Mr P returned to the house, having lived there for approximately 12 months. He was found to have approximately 1 g of methylamphetamine on him.
The drugs the subject of the count were located in a plastic container in an unlocked safe in the laundry. Mr Lenane informed Detective McDougall of the presence of the drugs in the safe while Mr Lenane was in the ambulance. At times, Mr Lenane also kept the plastic container with drugs in it under pavers in the backyard of the house.
At the time when police arrived, Mr Lenane was sitting on the two‑seater couch which appears to the bottom right of the first photograph in exhibit 5. On the arm of the couch immediately to the right of where Mr Lenane was sitting was $175 in cash. Under the sofa cushion behind where Mr Lenane was sitting was $2,500 in cash wrapped in a piece of paper.
There was a coffee table in front of the couch where Mr Lenane was sitting. It had a vast array of different items on it, which reflected the overall disarray in which the house was kept. There was a tin box under the coffee table. It contained a number of different drugs in separate parcels, being LSD, alprazolam, morphine, MDMA, and 6.16 g of methylamphetamine in three separate bags. The largest parcel of methylamphetamine was 3.74 g of approximately 79% purity. The tin box also contained sugar wrapped in alfoil. There was also a stone mortar bowl on the coffee table, which contained salt.
Under the coffee table was a cardboard box which contained a number of unused clip seal bags.
Under the couch, there was a set of electronic scales.
Further, there were two glass smoking pipes containing methylamphetamine.
Police also located two mobile phones, which were Mr Lenane's phones. Mr Lenane did not comply with data access orders to provide codes to the phones. This is the subject of counts 3 and 4 on the indictment, to which Mr Lenane has also pleaded guilty. Ultimately police were able to access the phones. The mobile phones had encrypted messaging apps on them, which included the Wickr app. Police were able to access the messages on the apps, except for the Wickr app. A number of the messages found on the other apps were deleted as a result of the relevant app being set to delete the message after a specified period of time.
The interior of the house was in a state of disarray, reflecting persons living a chaotic life. There were no items in the house which reflected substantial wealth on the occupants' part. Mr Lenane's parents owned the house. He paid the rent on and off when he could afford it. Mr Lenane's parents also helped Mr Lenane out financially, by giving him cash or making payments to his bank account.
On 18 July 2019, Mr Lenane received into his bank account the sum of $5,023.13 from his former employer. From that same bank account, Mr Lenane withdrew the following sums of money:[6]
1.the sum of $200 on 15 July 2019;
2.the sum of $650 on 15 July 2019;
3.the sum of $150 on 16 July 2019; and
4.the sum of $1,000 on 22 July 2019.
[6] Exhibit 17, pages 13 - 14.
These sums of money were withdrawn by Mr Lenane in cash from the Mount Lawley Caltex ATM, it being close to his home in Mount Lawley.
Having set out those uncontroversial matters, I now proceed to the specific evidence given by each witness.

Police witnesses

In terms of the police witnesses, Constable Hague gave evidence which I accept that in respect of the mobile phones, the silver Apple iPhone was found on Mr Lenane and the yellow cased iPhone was on the couch where Mr Lenane was sitting.[7] From the photographs of that couch, it appears the yellow cased phone is on charge.[8] Constable Hague also gave evidence that the Technology Crime Unit were able to open the phones and then he took photographs of the messages on them once the phones were opened.[9] Exhibit 15 comprises photographs taken of messages found on the yellow cased iPhone, which was the phone found on the couch. Exhibit 14 comprises photographs taken of screenshots of messages, which screenshots were on the silver iPhone found on Mr Lenane.
[7] ts 91.
[8] Exhibit 4, page 1.
[9] ts 93.
Constable Hague gave evidence that there were a few loose pavers out the back of the house and there was a hole under them which was the size of the cap found in the safe, being the lid of the capsule containing the drugs.[10]
[10] ts 102 - ts 103.
In cross-examination Constable Hague accepted that it is manifestly cheaper to buy drugs in bulk.[11] He also accepted that the higher the purity of the drugs, then it was more likely the purchaser was closer to the source of supply.[12] He said that it is not unusual to see clip seal bags in homes where people use drugs as they repackage the drugs for personal use.[13] In relation to electronic scales he said these are used by drug users to ascertain what they have purchased and they are not only consistent with selling drugs.[14] Further, he said that it is not unusual for a drug user to have more than one phone.[15]
[11] ts 106.
[12] ts 106.
[13] ts 107.
[14] ts 107 - ts 108.
[15] ts 108.
In respect of the other persons who were there, Constable Hague said that Mr P had been charged in respect of the methylamphetamine found on him. Further, Mr H may have been charged.[16]
[16] ts 112.
Constable Hague was taken at length in cross-examination through the messages the subject of exhibits 14 and 15. While I consider his evidence as to particular terminology used in those messages is relevant, I place little weight on his commentary as to what the messages were intended to convey as ultimately that is a matter for me.
He said that the phrase 'Dvd' on page 12 of exhibit 15 is not a common acronym for drugs.[17]
[17] ts 117.
He said that the word 'molly' referred to on page 15 of exhibit 15 is a reference to MDMA.[18]
[18] ts 118.
He said the reference to the word 'Charlie' on page 34 of exhibit 15 is a reference to cocaine.[19]
[19] ts 122.
He said in his experience a heavy user of drugs uses 0.8 g per day up to a gram per day.[20]
[20] ts 124.
Also, he said in his experience users that buy in bulk usually do not buy more than 3.5 g. He said this experience was based on what users told the police. He said in his experience users did not buy an ounce for their own personal use.[21]
[21] ts 125.
In re-examination he said that he had not seen drug users cut down their own drugs.[22]
[22] ts 127.
In respect of Detective McDougall, he gave evidence that when Mr Lenane was in the ambulance, he asked Detective McDougall if he wanted to know where the drugs were and then said 'they're in a locked box next to the toilet'.[23]
[23] ts 130.
Detective McDougall explained the descriptions given for respective drug weights. Of particular importance here are the following:[24]
1.A point is 0.1 of a gram.
2.A half-weight is 0.5 of a gram.
3.A weight is 1 g.
4.A half-ball is 1.5 g.
5.A ball is 3.5 g.
[24] ts 131 - ts 132.
He said MDMA is known as ecstasy and 'molly' is another word for MDMA.[25]
[25] ts 131.
He gave evidence as to the pricing of drugs in July 2019. He said that the price of an ounce was between $5,500 and $6,500. Further, the price of a point was $83, a half‑weight $483, a weight $750, a ball $1,200, and half an ounce $2,000.[26] He also gave evidence that the price of a half-ball was $600,[27] however, that does not seem consistent with the pricing of the other weights that he described.
[26] ts 132.
[27] ts 132.
He described the process of cutting or bulking up drugs by building it up with a similar looking substance such as sugar or table salt. He said this is done to make more weight. It also lowers the purity. He said users can bulk up drugs so as they are not as strong. He said a possible reason for bulking up drugs is to make the drugs last longer.[28]
[28] ts 134.
He said that in July 2019 the purity of methylamphetamine found was as high as 80%, but he could not recall what the average purity was in July 2019.[29]
[29] ts 135.
He said in his experience drug dealers use encrypted applications as they assist to avoid police detection.[30] He described how sometimes drugs are bought on an IOU basis, and that sometimes a taster is provided so that the buyer can check the quality of the drugs.[31] He said in his experience people buy drugs on credit and then sell drugs to earn enough money to pay off that debt.[32]
[30] ts 136.
[31] ts 136.
[32] ts 136 - ts 137.
He also described heavy users as using up to a gram per day.[33]
[33] ts 137.
He said the indicia of a drug dealer included multiple mobile phones, unused clip seal bags, digital scales, scoops and straws.[34] In respect of the phones, he said typically a dealer would have a clean phone for their usual personal activities and a dealing phone for their drug dealing activities. He also described how dealers would use false names.[35] He said spoons or straws are used to scoop the drug out of a bag so as to set the correct weight and can also be used to place it in a smoking pipe before lighting it, so users can use them as well.[36] He said that you do not always see all of these things present when a drug dealing operation is underway, but it is common.[37]
[34] ts 137.
[35] ts 137.
[36] ts 138.
[37] ts 138.
I accept the evidence of Detective McDougall and Constable Hague, subject to two qualifications. First, where Constable Hague said that in his experience users do not buy in bulk more than 3.5 g. I consider there is no plausible reason why that would always be the case. For example, as a matter of basic economics, if a heavy user had the available funds to buy a larger amount, then common sense suggests that would be an option open to them. Furthermore, proceeding in such a way reduces the interaction between the drug user and the drug dealer and therefore reduces the risk of detection. Second, in terms of the pricing suggested by Detective McDougall, I consider that it would not necessarily be unusual for pricing to fall outside the parameters he described, depending on the particular circumstances of the buyer and the seller and their relationship to each other.

Mr Lenane's evidence

Mr Lenane gave evidence he was a heavy drug user using from 0.5 g to 4 g of methylamphetamine per week.[38] He said the price for a half-ball was around $350 - $400.[39] He also said that he would buy up to 3.5 g or 7 g at any time.[40] He said he used on a daily basis if he could afford it.[41] He described how he had made the capsule in which the drugs were found from a stormwater cap, some PVC pipe and glue. It was made to store drugs in. He said he kept it at times underground out the back of the house, being under the pavers, and he usually left it there when he had gone to work for a few hours.[42]
[38] ts 140.
[39] ts 140.
[40] ts 140 - ts 141.
[41] ts 148.
[42] ts 171.
In respect of the persons who were in the house that day, being Mr H and Mr D, he said that they were both using drugs. He said that Mr H had brought his own drugs and Mr D was sharing a pipe with Mr Lenane.[43] Therefore Mr Lenane had given Mr D the drugs that they were sharing. Mr Lenane denied that Mr D had given him any money for those drugs.[44]
[43] ts 170 - ts 171.
[44] ts 171.
In relation to the parcel of drugs found in the capsule in the unlocked safe his evidence was that this came about through an acquaintance he had met through the party scene whose Christian name was James.[45] He said that about five days or a week before the police search, James had been at Mr Lenane's house. James told Mr Lenane that James should be able to get ounces at a decent price and asked Mr Lenane if he would like to go in on it. A price was not mentioned but James indicated it would be quite cheap. Two other people would be involved whose first names were Ben and Chris and they would each chip in their share and then divide up the drugs. The arrangement was they would take a quarter each and pay a quarter of the purchase price.[46]
[45] ts 143.
[46] ts 144 - ts 145.
Mr Lenane said that in the very early hours of the morning on the day of the police search, James arrived at Mr Lenane's house. He seemed to be quite high. He had with him the two parcels of drugs later found in the capsule in the safe. James said he needed to get Mr Lenane's money and also the money from one of the other people involved. James said 'I'm just going to leave this here (that being the drugs) and I'll come back tomorrow. We'll sort it out after work. We'll all meet up and sort it out'.[47] He gave Mr Lenane two bags which respectively contained the methylamphetamine of 27.7 g and 3.5 g. He asked Mr Lenane if he could leave it there. Mr Lenane offered him his portion of the money for it and James said 'No, I'll get it altogether'. Mr Lenane said he then put the drugs in the safe.[48]
[47] ts 146.
[48] ts 146.
In cross-examination Mr Lenane said he put the drugs in the plastic capsule and buried it outside while he was at work prior to the police search.[49] He said he had got home from work that day between 3.00 pm and 5.00 pm.[50] The police search of the house the subject of the video commenced at 5.59 pm.[51] Mr Lenane did not in evidence explain why it was that he had taken the capsule under the pavers from outside and put it in the safe unlocked when he returned. In that respect, his evidence was that none of the people who were at his house that day were involved in the transaction pursuant to which the 27.7 g had been acquired.[52]
[49] ts 173.
[50] ts 173.
[51] Exhibit 1.
[52] ts 148.
In examination‑in‑chief, he was taken to the messages which are exhibits 14 and 15. The proposition was put to him that the State said those messages demonstrated he was the person to go to if someone wanted drugs. His answer was:[53]
My friends and I, we would often ask each other if we knew where to get any drugs, if they had any drugs to go and use because, as I said, we would share with each other or you know, help each other out if someone was looking for them.
[53] ts 150.
In respect of the message which appears in exhibit 15 at page 36 about getting a price on an eight ball, he said he did not get a commission or make a profit on putting people in touch with suppliers. He also said he would only put people in touch with each other 'for good friends'.[54]
[54] ts 150 - ts 152.
In relation to having $2,500 on him at the time of the search, in examination‑in‑chief, he said that he had taken this money out for the purpose of $1,000 being used to pay for his quarter portion of the ounce and the rest, being $1,500, was to buy drugs.[55] In cross-examination he said he had taken the $2,500 from upstairs and put it under the couch cushion before the police arrived.[56] He said this was in anticipation of needing to pay his $1,000 contribution for one quarter of the methylamphetamine.[57] He was asked why he had brought down the entire parcel of $2,500, when he only needed to pay $1,000. He said he could not explain why he had done that.[58]
[55] ts 153.
[56] ts 176.
[57] ts 177.
[58] ts 177.
In relation to the suggestion put to him in cross-examination that the salt in the stone mortar was used to cut drugs, he said that he had put a pizza in the oven the night before which was bland so he had used the mortar and pestle to crush up some salt to put on the pizza. However, from having viewed the video of the search,[59] and the photographs of the table showing the mortar,[60] there is no pestle in with the mortar.
[59] Exhibit 1.
[60] Exhibit 8.
In cross-examination he said that the transaction regarding the purchase of the ounce was worked out mostly over Wickr.[61]
[61] ts 178.
In cross-examination, when asked why he had two mobile phones at the same time, he said he had lost his phone, bought another one to have in the meantime while he sorted out a new one to put his old number on, and once he had the new phone, he was charging up the other one and was going to wipe it and give it to a friend.[62] However, the messages on the yellow cased iPhone, which was the phone on charge, go back to 16 August 2018[63] and continue through to at least 30 December 2018.[64] That is inconsistent with it being a temporary phone.
[62] ts 191.
[63] Exhibit 15, pages 17 - 19.
[64] Exhibit 15, page 15.
In cross-examination Mr Lenane was taken at length to the messages forming exhibits 14 and 15. He was also taken in examination‑in‑chief to the message at page 5 of exhibit 14.
Overall, for the reasons which follow, in my view Mr Lenane in examination‑in-chief sought to minimise the drug activity reflected by the messages to the scenario where he and his friends would communicate with each other if they were out of drugs to see if they could share some drugs, or knew a possible source of drugs. In my view, in the messages Mr Lenane is doing much more than that. In addition, I find some of Mr Lenane's explanations in respect of the messages to be implausible.
In respect of the message on page 5 of exhibit 14, Mr Lenane said in examination‑in‑chief that in the couple of weeks before the message, he and the sender of the message had partied together a lot, she (that being the person who sent the message) had bought a full ball for the party, 'so I think she's saying she wanted to get another - do that again basically, to party together again'.[65] When asked in examination‑in‑chief why the sender of the message mentioned to Mr Lenane that she wanted another full ball, his answer was 'Cos I attended the party, had a great time'.[66]
[65] ts 158.
[66] ts 158.
In my view it is clear from the message that the sender is hoping that Mr Lenane will assist her in obtaining a full ball for Thursday. Implicit in this is the sender's expectation that he has the capacity to do so. I find Mr Lenane's explanation that this was mentioned to him because he had attended the party and had a great time to be evasive and implausible.
In relation to the messages forming part of exhibit 15:
1.As to the message on page 9, this message was sent on 13 June 2019. Mr Lenane is being asked by the sender if it is stretching it to get a half‑weight till tomorrow, otherwise a point. Mr Lenane accepted in cross-examination that from the message it looked like the sender, Sheyne was trying to buy drugs from Mr Lenane on credit.[67] This is inconsistent with his portrayal of the sharing type arrangements which he discussed in examination‑in‑chief.
2.In respect of the message from 'Daymo' (being Mr D) on page 12, Mr Lenane in examination‑in‑chief said the phrase 'Dvd? Keen as tits xx', was potentially a reference to Mr Lenane and Mr D sharing DVDs.[68] In my view the message is plainly not about DVDs and the phraseology DVD is being used as code for something else. Further, in respect of the message on page 13 from Mr D, Mr Lenane in cross‑examination accepted that Mr D was trying to buy drugs off Mr Lenane.[69]
3.In relation to the message on page 15 where the sender asked Mr Lenane if he was 'free to hang with molly', Mr Lenane said in cross-examination that the message was asking whether he wanted to party with the sender on MDMA.[70] In relation to his response to the message that he would 'keep [an] eye out', he said in cross-examination that meant if he found any MDMA he would let the sender know and then they could party.[71] In my view in the message the sender is asking Mr Lenane to source MDMA for her and he is agreeing to do so if he can find some.
4.In respect of the messages on pages 18 and 19, Mr Lenane said that he was agreeing to meet up with the sender of the message and smoke some drugs.[72] In my view, the sender is seeking to obtain the drugs from Mr Lenane, not to use them with him. There is no mention in the message to the sender wanting to get together with Mr Lenane to smoke drugs.
5.In respect of the messages with 'Tony l',[73] I read the message on the top of the page 29 as asking whether it is possible for Tony 1 to see Mr Lenane's mate before 4.00 pm. In this respect I think the word 'you' in the second line should be 'your'. Mr Lenane asks 'what for?'. The response is 'Just a chat about the Cricket', which I infer is a reference to cocaine. In my view, these messages suggest that Tony 1 understood Mr Lenane to be someone who could facilitate a purchase of cocaine.
6.In respect of the messages with Tony Scarb,[74] by the message on page 34, Mr Lenane had let Tony Scarb know that Mr Lenane's friend had cocaine. Tony Scarb then expresses an interest in obtaining a ball and asks Mr Lenane to get a price for him (page 36). Tony Scarb in his message says he wants a price for a ball 'so I can try and let me people try before I go bigger'.
7.This message suggests Tony Scarb is intending to supply at least some of the cocaine to others.
8.Mr Lenane responds with a message that he thinks the price is 12, which I infer is $1,200, and then confirms that is the price (page 37). Mr Lenane then arranges for that transaction to take place, however, that does not ultimately eventuate and what occurs is Mr Lenane says a 'taster' is going to be left with Mr Lenane for Tony Scarb to try (pages 39 - 41).
9.What is significant about the messages with Tony Scarb is they do not fit Mr Lenane's portrayal that the messages on his phones reflected drug using friends contacting each other when they were short of drugs. Rather, in the messages with Tony Scarb, Mr Lenane is actively facilitating a sale of cocaine. In this respect, the message from Mr Lenane on page 34 tells Tony Scarb about the availability of 'Charlie' from Mr Lenane's mate and says 'thought you might be interested'. There is no reference in the message to Tony Scarb seeking any cocaine at the time. Further, it is clear from the messages on page 38 that Tony Scarb did not need cocaine at the time as he had 2 ounces, yet Mr Lenane continued to facilitate a possible transaction. Furthermore, Mr Lenane in cross-examination accepted that in the messages he was facilitating a drug deal.[75]
[67] ts 183.
[68] ts 184.
[69] ts 185.
[70] ts 185.
[71] ts 186.
[72] ts 186.
[73] Exhibit 15, pages 23 ‑ 30.
[74] Exhibit 15, pages 31 ‑ 43.
[75] ts 190.
Overall, I consider that Mr Lenane in his examination‑in‑chief sought to downplay his activity in the messages to that of friends only helping each other out when they were short of drugs. While I accept Mr Percy's submission that the messages do not reflect a concluded drug deal having been done, in my view the messages demonstrate Mr Lenane actively facilitating the sale of drugs and being seen as a person who could and would do so.
Further, for the reasons that I have just expressed, I regard parts of Mr Lenane's evidence where he attempts to give explanations for the messages as being entirely implausible.
In respect of Mr Lenane's evidence as to the circumstances in which the methylamphetamine found in the capsule in the unlocked safe was there, I reject that evidence for the following reasons:
1.I have significant concerns about Mr Lenane's credibility given the matters I have just set out regarding the messages. Further, in my view, the messages taken as a whole convey an expectation that Mr Lenane was a seller of drugs and this expectation arose because of prior dealings between that person and Mr Lenane. I also reject Mr Lenane's explanation as to how he came to be in possession of two working phones. The timing of the messages on exhibit 15 are not consistent with that explanation.
2.I find Mr Lenane's explanation that he had the additional $1,500 on him to buy more drugs for personal use is implausible. On Mr Lenane's evidence, he was to receive 7 g of methylamphetamine as part of the overall transaction to share the 27.7 g parcel. Together with the additional drugs in the tin,[76] the total drugs then available to Mr Lenane would last about three weeks, even on Mr Lenane's maximum usage of 4 g per week. Accordingly, on Mr Lenane's version of events, he had no immediate need to acquire any further drugs. Further, he accepted in cross-examination that he could not explain why he had brought the additional $1,500 down from upstairs.
3.I find Mr Lenane's explanation as to the circumstances in which he came to have the methylamphetamine to be implausible. On Mr Lenane's version of events, the person came unexpectedly after midnight, Mr Lenane put the drugs in the safe, he then put the drugs in the capsule and buried them underneath the pavers (presumably before going to work the next day) and then after returning from work took the capsule out and put it in an unlocked safe, even though the people who were at his house had no involvement with the drugs in the capsule and Mr Lenane was paranoid as to where he kept drugs.[77]
[76] Which included 6.16 g of methylamphetamine.
[77] ts 171.
For these reasons, I reject Mr Lenane's version as to how he came to be in possession of the methylamphetamine found in the unlocked safe. For the same reasons, I also reject Mr Lenane's evidence that he did not sell drugs and that to the extent he gave drugs to other people, it was only on the basis that he was helping them out.
In terms of the State's case, in my view the following matters are of significance:
1.While the State points to Mr Lenane having the sum of $2,675 on him at the time of the search, which was a large amount for him, it must be kept in mind that he did receive a significant payment of approximately $5,000 from his former employer which was paid into his bank account seven days before the police search.
2.The messages found on the phones reveal that Mr Lenane facilitated drug transactions and was understood to be a seller of drugs. However, in my view, the messages on the phones indicate an involvement by Mr Lenane in sourcing drugs at a low level and in an unsophisticated manner. In this respect, the quantities discussed in the messages are relatively low and also Mr Lenane did not use a false name on either phone.
3.I consider the totality of the items associated with drugs found in Mr Lenane's lounge room on the day suggests more than Mr Lenane being a drug user who occasionally supplied to his friends. In this respect, I have regard to the vast variety and quantities of drugs in the tin box, the unused clip seal bags, the quantity of methylamphetamine found in the safe, the relatively significant amount of cash that Mr Lenane had on him and the presence of two mobile phones with encrypted messaging apps on them.
4.From the state of the house, in my view, Mr Lenane's life at the time was a chaotic one bordering on disarray. Further, there is no suggestion from what I can observe from the video of the search that there are any examples in the house of great wealth earnt from dealing drugs. To the contrary, the house revealed itself as being one which reflected a standard of neglected living.
5.Mr Lenane was cross-examined at length as to his financial position. I accept that the house in which he lived was owned by his parents, he paid rent sporadically and his parents helped him out financially. In this respect, the bank records which are exhibit 17 contain payments from Mum and Dad. I also accept Mr Lenane's evidence that he was working jobs for which he was paid in cash.
6.As to Mr Lenane's drug use, I accept his evidence that it fluctuated. This is consistent with common sense. I also find that his maximum methylamphetamine use per week was around 4 g per week. This is consistent with Mr Lenane's evidence and broadly consistent with the evidence of the police officers as to the maximum usage they had encountered.
When I have regard to the entirety of the circumstances which I find to exist, I am satisfied that the only reasonable inference is that at the point in time of the search Mr Lenane had engaged in, and continued to engage in, the sale of drugs. However, I consider this was at a low level in an unsophisticated manner and within a relatively small group of people.
Having made that finding, when I have regard to the quantity of methylamphetamine found in the unlocked safe and also Mr Lenane's maximum usage of methylamphetamine per week, I am satisfied the only reasonable inference is that Mr Lenane intended to sell some of the methylamphetamine found in the unlocked safe. Overall, I am satisfied beyond reasonable doubt Mr Lenane intended to use some of the methylamphetamine, sell some of it and, on occasion, supply some to his friends. I am also satisfied beyond reasonable doubt that the principal purposes for which Mr Lenane was in possession of the methylamphetamine were to use it and to sell it. I consider the supply by Mr Lenane to his friends was subsidiary to these principal purposes. I cannot otherwise assess with any precision the quantity of the methylamphetamine Mr Lenane intended to sell.
I am not satisfied beyond reasonable doubt as to the State's suggestion that Mr Lenane's living area was in effect a shop front from which he was conducting a drug dealing operation. In my view that reflects an operation which is much more organised and sophisticated than that which I consider was in place.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CA
Associate to Judge Lemonis
24 AUGUST 2021