The State of Western Australia v Macdonald

[2018] WADC 56

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CRIMINAL

LOCATION:   PERTH

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- MACDONALD [2018] WADC 56

CORAM:   JUDGE LONSDALE

HEARD:   27 NOVEMBER - 1 DECEMBER 2017 & 1-2 MARCH 2018

DELIVERED          :   11 MAY 2018

FILE NO/S:   IND 572 of 2017

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND

JOSHUA DOUGLAS MACDONALD

Catchwords:

Criminal law - Sentencing -  Trial of issues - Offer to sell methylamphetamine - Sell methylamphetamine - Level of offender's involvement

Legislation:

Sentencing Act 1995 s 7(1), s 8(1)

Result:

Findings made as to offender's level of involvement on counts 1 and 3 out of eight counts on indictment

Representation:

Counsel:

Applicant	:	Mr S Dworcan
Accused	:	Mr G Papamihail

Solicitors:

Applicant	:	The Director of Public Prosecutions
Accused	:	George Papamihail Barristers & Solicitors

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

Ahern v The Queen (1988) 80 ALR 161; (1988) 165 CLR 87

Marker v The Queen (2002) 125 A Crim R 55

Ozan v The State of Western Australia [2013] WASCA 27

R v Olbrich (1999) 199 CLR 270

Tanner v The State of Western Australia [2013] WASCA 142

JUDGE LONSDALE:

1. On 23 June 2017, Joshua Douglas MacDonald ('MacDonald') pleaded guilty to counts 1 and 3 - 9 on indictment number 572 of 2017 being seven counts of selling methylamphetamine and one count of offering to sell methylamphetamine.

2. Count 1 concerned the sale of 13.6 g of methylamphetamine to an undercover police operative (UCO) on 29 February 2016.  Count 3 concerned MacDonald offering to sell 1 kg of methylamphetamine to the same UCO between 28 February and 7 April 2016.  Counts 4 ‑ 9 concerned offences of offering to sell methylamphetamine on various dates between 28 February 2016 and 8 May 2016 to several different persons.

3. MacDonald pleaded not guilty to count 2, being a charge of supplying 55.7 g of methylamphetamine to the UCO on 10 March 2016.  The trial on that count commenced before me and a jury on 27 November 2017.

4. Prior to the commencement of the trial, the State indicated that a trial of issues on counts 1 and 3 would be necessary because MacDonald disputed the extent of his role in the offending.

5. On 1 December 2017, following five days of trial the jury returned a verdict of not guilty on count 2.  A judgment of acquittal was entered and the matter adjourned for a trial of issues on counts 1 and 3 before me.

6. The trial of issues was held before me on 1 and 2 March 2018.

7. The evidence led by the State at the trial on count 2 is relevant to the accused's conduct in respect of the remaining counts and to the issues I am required to determine.

Issues for determination

1. MacDonald disputes the level of his involvement in the offences the subject of counts 1 and 3 on the indictment.

2. In relation to count 1, the State asserts that at a meeting on 29 February 2016 (at which Daniel Higgins 'Higgins' was present) MacDonald supplied 13.6 g of methylamphetamine to the UCO and received $4,000 in cash.  MacDonald denies that he supplied the drugs on that occasion and claims they were supplied by Higgins; he contends that his involvement was that of an aider to Higgins.

3. In relation to count 3, the State asserts that on 29 February 2016 MacDonald offered to supply the UCO with a kilogram of methylamphetamine in circumstances where he had an (unidentified) supplier who was able to supply that quantity.  MacDonald does not deny that he made an offer to sell a kilogram of methylamphetamine to the UCO on 28 February 2016 or that he subsequently made a number of representations to Higgins to that effect.  He denies however that he was in fact able to supply such a quantity - or that he knew someone who could.

4. The State asserts that he was dealing in methylamphetamine for commercial gain and made extensive efforts to facilitate the supply of a kilogram of methylamphetamine to the UCO through Higgins.  This is denied by MacDonald who admits only that he supplied relatively small quantities of drugs to others and did not have access to larger amounts.

Principles applicable to the trial of issues

1. The role of a sentencing judge includes the making of findings of fact for sentencing purposes.

2. In determining the appropriate sentence, the judge must have regard to aggravating and mitigating factors.[1]

   [1] Sentencing Act s 7(1) and s 8(1)

3. The State must prove aggravating factors beyond reasonable doubt.  The defence must prove mitigating circumstances on the balance of probabilities.[2]

   [2] Marker v The Queen (2002) 125 A Crim R 55 [9], [22] and [23]; R v Olbrich (1999) 199 CLR 270, 280; Ozan v The State of Western Australia [2013] WASCA 27 [47]; Tanner v The State of Western Australia [2013] WASCA 142 [180]

4. The State accepts that disputed assertions are aggravating circumstances which it is required to prove beyond reasonable doubt.

Overview of the evidence at the trial and trial of issues

1. At the trial on count 2 the evidence led by the State largely consisted of the evidence of the UCO and 42 covert recordings and lawfully intercepted telephone calls and text messages between the UCO and Higgins and Higgins and MacDonald between 26 February and 17 March 2016.  Those 42 recordings were tendered in evidence and played before me and the jury.  The transcripts of these communications were produced and contained in a jury book ('JB').

2. At the trial of issues the UCO gave evidence.  The State tendered and played a further 58 covert communications between the UCO and Higgins and Higgins and MacDonald between 15 March and 7 April 2016.  The transcripts of those communications were contained in a book ('TOI').

3. What was said between Higgins and MacDonald in those communications (in the absence of MacDonald) was led by the State pursuant to the co-conspirators rule.[3]

   [3] Ahern v The Queen (1988) 80 ALR 161; (1988) 165 CLR 87

The evidence led at the trial

1. Between 29 January and 10 May 2016, police lawfully intercepted two mobile phones used by Higgins.

2. In February 2016, Higgins was contacted by a police undercover operative named 'Tyson' (the UCO).  The UCO and Higgins were in regular telephone contact and met in person on a number of occasions between February and May 2016.

3. At an early stage of their communications, the UCO informed Higgins he was interested in purchasing 1 kg of methylamphetamine.

4. MacDonald and Higgins were friends.  They were in regular telephone contact with one another and met up on a number of occasions, between February and April 2016.

5. The UCO met with Higgins at Higgins' home on a number of occasions in 2016, namely 26 February, 29 February, 8, 10, 15, 17 and 24 March and 1 April.  The meetings between the UCO and Higgins were audio‑recorded in their entirety.

6. Just after 1.00 pm on 26 February 2016, the UCO met with Higgins at Higgins' home on the pretence that he was interested in purchasing a large quantity of methylamphetamine.  During that meeting, Higgins told the UCO he would speak with 'his mate' about providing a sample.  The State case submits that 'his mate' was MacDonald.[4]

   [4] JB 1

7. Shortly after meeting with the UCO, Higgins exchanged text messages with MacDonald saying he wanted to meet with him to discuss something important.[5]

   [5] JB 2 and 3

8. Nearly an hour after Higgins and MacDonald exchanged text messages about meeting up, the UCO telephoned Higgins who said he had 'just talked to his friend' who would be able to supply him.[6]

   [6] JB 4

9. At 4.10 pm that same day the UCO spoke to Higgins by phone.  During that call he said he wanted to go with 'half a full' for four [meaning half an ounce of methylamphetamine for $4,000] and, if it was 'A grade' he would probably 'grab the rest of it'.[7]

   [7] JB 5

10. Just after midnight on 27 February 2016, Higgins telephoned MacDonald to say 'that thing for tomorrow is all sweet' which was a reference to the drug deal Higgins was about to facilitate with the UCO.[8]

    [8] JB 6

11. At 9.36 am on 27 February 2016 Higgins phoned the UCO and indicated that 'he [MacDonald] wants to do it today'.  They discussed price and the UCO again reiterated to Higgins that he only wanted to buy a 'half'.[9]

    [9] JB 7

12. Just after 2.00 pm on 29 February 2016, the UCO went to Higgins' place in Stirling Street Highgate.  While he was there, Higgins introduced him to MacDonald.  During that meeting, Higgins and MacDonald sold what was purported to be half an ounce of methylamphetamine to the UCO for $4,000 cash.  The drugs were later weighed and analysed and found to contain 13.6 g of methylamphetamine with a purity of 78%.  This meeting was covertly recorded using an audio-recorder but was also partially recorded using audio-visual means.[10]

    [10] JB 12

13. The UCO gave evidence at the trial that he handed the money directly to MacDonald in $50 notes.[11]

    [11]JB 12

14. During that meeting, MacDonald told the UCO that the drugs had come from his boss - who he said was 'one of my mates'.  MacDonald said 'you can get it quite regularly' and 'he gave me a price (...) he said if you're coming regularly you know it'll drop but it came up 1-9-2-5, which worked out 5-5, like per oscar'.¹²  The UCO asked him what the price was 'per key' and MacDonald said 'It works out, ah, 1-9-2-5'.  It was common ground that 'oscar' is a reference to an ounce and 'key' a reference to kilogram.  It is not in dispute that the UCO had asked him for the price of a kilogram and MacDonald had told him the price would be $192,500.

15. Following the sale of the 13.6 g methylamphetamine to the UCO on 29 February 2016, the UCO and Higgins remained in telephone contact.

16. At 10.08 am on 2 March 2016, the UCO sent a text to Higgins which read 'that thing was A grade' (which was a reference to the UCO being pleased with the quality of methylamphetamine he had received).

17. On 2 March 2016 at 10.08 am MacDonald phoned Higgins who indicated that he had spoken to the UCO who had advised him that he was 'happy with that' (which was a reference to the quality of the 13.6 g he had been supplied with on 29 February) and that he was planning to 'catch up for coffee' with him next week.[12]

    [12] JB 13

18. On 7 March 2016 at 11.28 am, the UCO phoned Higgins and they discussed 'catching up for coffee'.  It was not in dispute that 'catching up for coffee' is code for meeting to discuss drugs.[13]

    [13] JB 15

19. At about 9.00 am on 8 March 2016, the UCO visited Higgins and informed him that he was impressed with the quality of the half ounce he had purchased on 29 February 2016.  He told Higgins that he was interested in purchasing another two ounces.  Higgins said he would arrange for the supply.[14]

    [14] JB 16

20. At 11.40 am that morning the UCO phoned Higgins and discussed meeting up on Thursday and wanting '2' which was a reference to 2 ounces of methylamphetamine.  They discussed the price and Higgins told the UCO that 2 ounces would cost $15,000.[15]

    [15] JB 17

21. On 8 March 2016 at 6.16 pm MacDonald sent a text to Higgins saying 'what u doing tonight'.  He replied and said 'Working penthouse'.[16]  (Detective Sevelj gave evidence that the Penthouse Club is a nightclub in William Street in Northbridge).[17]

    [16] JB 18

    [17] Trial ts 149

22. On the evening of 8 March 2016 MacDonald and Higgins exchanged a number of text messages which convey the impression they were planning to meet.[18]

    [18] JB 18 - 22

23. On 9 March 2016 at 2.31 pm, MacDonald received a call from Higgins during which Higgins asked him 'did you talk to your mate, or that, for tomorrow and stuff'.  MacDonald replied 'yeah.  It's all sweet'.[19]  The State submitted that this was a reference to him having obtained methylamphetamine for sale to the UCO.

    [19] JB 23

24. On 9 March 2016, the UCO sent a text to Higgins to arrange to catch up with him the next day for a 'coffee' which again was code for meeting to further a drug deal.[20]

    [20] JB 24

25. On 9 March 2016 at 7.29 pm, Higgins telephoned MacDonald and said to him 'that fella said all good for 10 tomorrow'.  The State case was that this was a reference to the proposed delivery of the drugs to the UCO at 10.00 am the next day.[21]

    [21] JB 25

26. On 9 March 2016 at 7.31 pm, Higgins sent a text to the UCO saying 'ya all good mate' which the State submitted confirmed the arrangements for the meeting the next day.[22]

    [22] JB 27

27. On 9 March 2016 at 7.35 pm, the UCO phoned Higgins to confirm the meeting for the next day.[23]

    [23] JB 28

28. At 9.26 pm Higgins phoned MacDonald and they discussed meeting up at Embargo at Elizabeth Quay. MacDonald replied to him that he is 'near the Raffles' and that he will 'see him in about 10 minutes'.[24]

    [24] JB 28

29. On 10 March 2016, the UCO visited Higgins' unit wearing a covert recording device.  After some preliminary discussion, the UCO said to MacDonald '[b]eautiful, mate.  Is your mate coming over is he?' and Higgins replied 'No.  He's dropped it.  I'm going to grab it now for you ... [he has] put it somewhere ... so I'll grab it for ya ... it's just down by the fucking house.  Josh has buried it in the fucking hedge'.[25]  The State submitted at trial that the reference to Josh was a clear reference to MacDonald (whose first name is Joshua).

    [25] JB 29

30. The UCO gave evidence that Higgins left the unit and went to get the drugs and when he returned Higgins gave him a package containing approximately 2 ounces of methylamphetamine contained within two clipseal bags and covered in black plastic.  Higgins gave the methylamphetamine to the UCO and was given $15,000 in cash.  The methylamphetamine was analysed and found to weigh 55.7 g and had a purity of 75%.

31. MacDonald's evidence at the trial was that he had not placed the methylamphetamine in the bushes; nor did he have anything to do with supplying Higgins on that occasion.[26]

    [26] Trial ts 314

32. Under cross-examination, the UCO agreed that the information that MacDonald was the person supplying Higgins on that occasion had come from Higgins himself.

33. The drugs were tested for DNA.  The inner clip seal bag which housed the drugs contained a mixed DNA profile.  A contributor by the name of Ginus-Gina Baghdasraf was retrieved.  It was common ground that Ms Baghdasraf was in a relationship at the time with MacDonald.[27]

    [27] Trial ts 176

34. After the meeting between Higgins and the UCO on 10 March 2016, MacDonald went to Higgins' unit.[28]  The State asserted that the purpose of MacDonald's attendance at Higgins' unit was to retrieve the cash, or at least part of it which the UCO had paid.

    [28] JB 30

35. MacDonald did not deny in evidence that he went to Higgins' place on that occasion but said that his purpose was to fix Higgins' car.  MacDonald said that he was a mechanic and, because Higgins had bought a BMW which was a lemon, he had asked him to fix it.  He denied that he went there to retrieve money from a drug deal.[29]

    [29] Trial ts 235

The jury's verdict on count 2

1. In finding MacDonald not guilty of count 2, the jury must have entertained a reasonable doubt about whether MacDonald was involved in the supply of methylamphetamine to the UCO on that day.

2. In my view, although I consider the communications between Higgins and MacDonald to have been highly suspicious, I am obliged to give effect to the jury's verdict on count 2.

3. I therefore proceed on the assumption that he was not involved with the supply of the 55 g of methylamphetamine to the UCO that day.

4. However, I am not precluded from taking into account what was said between the UCO and Higgins and Higgins and MacDonald as part of the matrix of facts forming the background to the balance of his offending.

5. For reasons which I will explain later, I consider that it is clear that in the period of the commission of the offences MacDonald's communications with Higgins suggest that he was actively involved in the drug world.

6. Following Higgins supplying the UCO with methylamphetamine on 9 March 2016, the UCO and Higgins had a number of discussions concerning the proposed purchase of larger amounts of methylamphetamine.

7. There is no dispute that Higgins and MacDonald also had a number of discussions between them about how that could take place.  MacDonald's evidence at the trial was to the effect that, in participating in those discussions, he was 'playing a role' by pretending he could supply large quantities of methylamphetamine through a supplier known to him; and that he did this in order to keep Higgins happy because Higgins was supplying him with free methylamphetamine.[30]

   [30] Trial ts 239

8. The UCO made several attempts to agree with Higgins on arrangements for the sale of the drugs to him.  On a number of occasions, Higgins told the UCO that 'his mate' wanted payment before delivery.  Understandably the UCO was not prepared to agree to conduct the proposed sale on that basis.

9. Higgins and the UCO tried to settle on the terms of the sale and delivery of a quantity of methylamphetamine on several occasions - but failed to reach agreement on a mutually satisfactory plan.[31]

   [31] JB 32, 33, 36, 37, 39, 40

10. On 17 March 2016 at 3.42 pm[32] a phone call between MacDonald and the person Jason Retter was intercepted. Mr Retter said to him 'I've got a thing so you'll have to give me like a day's notice all right?'  The State submits that Retter's reference to a 'thing' is a reference to a quantity of drugs; the State further submits the timing is significant because Higgins had earlier that day met with the UCO for the purpose of arranging the sale.

    [32] JB 42

Evidence in relation to counts 4 – 9 (communications between 16 March and 14 May 2016)

1. Between 16 March and 14 May 2016, MacDonald made numerous offers to sell smaller quantities of methylamphetamine using a 'Soyes' (encrypted) phone.  MacDonald squarely admitted that, during this period of time, he was actively dealing in drugs.

2. On 9 April 2016 (count 4) MacDonald told a male person on the phone he was doing 'halfies' for $350, a full gram for $600, a 'half ball' for $800 and a 'ball' for $1,600.  On this occasion he offered to sell 3.5 g of methylamphetamine.

3. On 14 April 2016 (count 5) MacDonald spoke with a male, JS who asked him for a 'half weight' for 'Lesley'.  JS said he could give him $50 that day and he could get $250 from his 'missus'.  He offered to sell 0.5 g of methylamphetamine on this occasion.

4. On 15 April 2016, MacDonald again spoke with JS.  A few minutes later, he called 'Lesley' and arranged to sell him a 'half ball' for $800 and told him to pay JS.  He called JS afterwards to tell him what was happening.[33]  On this occasion he offered to sell 1.75 g of methylamphetamine.

   [33] CSN 25, 26 and 27

5. On 19 and 20 April 2016, MacDonald exchanged 15 text messages with a male (Dylan).  MacDonald told him he had 'rok' and was selling 'HW300, G600, HB800, B1600'.  The male asked for a half weight.  They arranged to meet.[34]  On this occasion he offered to sell 0.5 g of methylamphetamine.

   [34] CSN 39 - 55

6. On 26 April 2016, MacDonald had a telephone conversation with a female (Jade).  She said she wanted to get some 'stuff'.  He asked her what she wanted and she said 'white'.  He said he would see his 'mate'.  She said she was after a 'HW'.  In a text message later that evening, she asked where to meet.  She said she had $350.[35]  On that occasion he offered to sell 0.5 g of methylamphetamine.

   [35] CSN 6993 and 7012

7. On 8 May 2016, MacDonald called a female (Jackie) who said she was after 'gear'.  MacDonald told her it was a minimum half weight at $300.  He said it was 'quality'.  He also mentioned other drugs he could sell to her such as pills and weed.  She said she wanted the half weight for $300.  They arranged to meet.[36]  On that occasion he offered to sell 0.5 g of methylamphetamine.  MacDonald's evidence was that at the time he was offering to sell smaller quantities of methylamphetamine and helping out other methylamphetamine users.[37]

   [36] CSN 101 – 105, 108 and 111

   [37] Trial ts 217

Additional communications led at the trial of issues (18 March 2016 – 7 April 2016)

1. On 18 March 2016, Higgins spoke to the UCO and told him that MacDonald had spoken to him on the phone.  Higgins told MacDonald that he was going interstate and would catch up with the UCO when he got back.[38]

   [38] TOIB 7

1. On 23 March 2016, Higgins spoke to MacDonald.  Higgins indicated that he had spoken to the UCO.  MacDonald asked Higgins to visit him and Higgins replied 'I'll, I'll message on the "other thing" and let you know what he said'.

2. In that call, MacDonald suggested that they meet the following day.  Higgins told MacDonald 'but I think that fellow wants to do that, you know what I'm on about - - -'.  MacDonald replied 'yeah, yeah, yeah. We'll just chat when I see you'.  The State submits that the reference to 'the other thing' was a reference to communicating on a more secure device or application and indicates a consciousness on the part of MacDonald that they needed to avoid detection.

3. The State submits that MacDonald appeared to be concerned about speaking on a mobile phone and that they are plainly talking in code.[39]

   [39] TOIB 9

4. On 24 March 2016 at 11.42 am the UCO and Higgins met in person.  Higgins told the UCO that he had talked to MacDonald.  In that call Higgins told the UCO that (MacDonald) had instructed that (the UCO) would need to hand the money over the night before the drugs were delivered and that he required a day or two to get the drugs.  The UCO expressed dissatisfaction with the proposal and Higgins said he would tell (him).  Higgins indicated that he understood why the UCO would be unhappy paying $192,500 in advance.  At one point, Higgins said to the UCO 'like, I didn't even know there was that much fucking business with this shit, but apparently there is'.[40]  The State submits that this is evidence of Higgins being unfamiliar with the sale of large quantities of methylamphetamine and provides a credible reason for him to have sought the assistance of MacDonald.

   [40] TOIB 10

5. On 29 March 2016, the UCO again met with Higgins who told him that he had not spoken to his supplier but knew that he was not going to budge on the arrangements for the delivery.  Higgins said he had not met the supplier but said that the supplier and 'Josh' (ie: MacDonald) had been close friends since they were kids.  Higgins then said he could try another mate but he could not promise the quality would be as good.  He said he did not even know if that person had any stock.  At one point he said 'if this fellow does not have any, then Josh (ie MacDonald) is the only other person that I know that would have some'.[41]

   [41] TOIB 14

6. On 31 March 2016, Higgins spoke to MacDonald and told him 'that fellow was over again'.  MacDonald said 'oh, yeah, I've got something to chat to you about where we could come to something, but yeah'.  MacDonald said he had spoken to 'his mate' who could understand where the UCO was coming from with his concern (about payment prior to delivery).  MacDonald then said to Higgins that 'there might be a way around it' and 'I'll come see you'.

7. Higgins and MacDonald then had a discussion about providing the UCO with a small sample.  MacDonald said 'I can do that again if you wanted to do that' and Higgins replied 'yeah but we make fuck all off that'. MacDonald said he would visit Higgins.[42]

   [42] TOIB 19

8. Later that night, Higgins telephoned the UCO and indicated that he had been talking to 'his mate'.  Higgins suggested to the UCO that MacDonald could do 'another thing' he would probably be more comfortable with.  Higgins asked the UCO to meet him the next day.[43]

   [43] TOIB 24

9. The State submits that Higgins was likely to have met up with MacDonald because, in the earlier call between Higgins and MacDonald, they had discussed arranging to meet.

10. The next day, 1 April 2016, the UCO met with Higgins.  Higgins said he had met with (MacDonald) at Botanica the previous night.  The State submits that this is likely to be true as on 31 March 2016 MacDonald had intimated he would visit Higgins at work.[44]

    [44] TOIB 20 -21

11. Higgins told the UCO about MacDonald's proposal for how the transaction would work.  Higgins suggested that he (Higgins) would be in the car with him and MacDonald would meet them.  The UCO would then hand MacDonald the money and, 5 minutes later, the supplier would ride past on a motorbike and throw the drugs into the car.  The conversation ended with Higgins indicating that he would speak to (MacDonald) that night.[45]

    [45] TOIB 25

12. About 7 minutes after the meeting between the UCO and Higgins on 1 April 2016 ended, Higgins telephoned MacDonald and told him that he had met the UCO, and would visit Higgins at work that night.[46]

    [46] TOIB 28

13. On 4 April 2016, the UCO spoke to Higgins who said he had spoken to MacDonald and told him what he (MacDonald) wanted the UCO to do.  Higgins confirmed with the UCO that he had spoken to (him) straight after their meeting on 1 April 2016.  The UCO said that he would arrange to meet up with Higgins that afternoon.[47]

    [47] TOIB 31

14. Within 15 minutes of speaking with the UCO on 4 April 2016, Higgins telephoned MacDonald and told him that the UCO wanted to meet up with him.  MacDonald told Higgins that he had not caught up with his 'mate' yet.  The State submitted that the reference to his 'mate' was a reference to MacDonald's drug supplier.[48]

    [48] TOIB 32

15. On 5 April 2016, MacDonald and Higgins were in contact a number of times.  In the evening, MacDonald sent a text to Higgins about catching up the following day.[49]  Later that night, he sent another text asking if Higgins was working and said he would 'come past'.[50]

    [49] TOIB 44

    [50] TOIB 48

16. On 6 April 2016, Higgins spoke with the UCO and told him that he 'got chatting to [MacDonald]' and asked if they could do a smaller quantity.  Higgins told the UCO that MacDonald had visited him at work the previous night.  (The State submits this is likely to be true as it is consistent with the messages between Higgins and MacDonald the previous afternoon.)

17. After some further discussion between the UCO and Higgins, they discussed the possibility of purchasing half the original amount ie, half a kilogram.  Higgins indicated he would need to speak to (MacDonald) again.[51]

    [51] TOIB 50

18. On 7 April 2016 Higgins spoke with MacDonald.  He told MacDonald he had spoken to the UCO the previous night.  Higgins expressed frustration about the UCO and MacDonald responded by saying 'oh, I'll, I'll come and see you anyway'.[52]

    [52] TOIB 51

19. A couple of hours after Higgins spoke with MacDonald on 7 April 2016, Higgins telephoned MacDonald again.  Higgins said he had come up with a good idea that would 'leave both of us out of it' and the UCO would 'get it the way he wants it'.  MacDonald told Higgins he could visit him after lunch.[53]

    [53] TOIB 52

20. That afternoon, the UCO sent a text to Higgins saying he 'will sort it out'.[54]  Following that communication between Higgins and the UCO no further discussion about MacDonald supplying the UCO took place.

    [54] TOIB 56

Analysis of the communications relied on by the State

1. The communications between Higgins and the UCO and the UCO and MacDonald, in the absence of a satisfactory explanation by MacDonald establish that MacDonald was actively involved in the sale of the 13.6 g of methylamphetamine to the UCO on 29 February 2016.  It plainly establishes that he was actively interested in and involved in attempting to source a kilogram of methylamphetamine for sale to the UCO.

2. I have come to that conclusion, on the State case, for the following reasons.

3. MacDonald was present on 29 February 2016 when the 13.6 g was supplied to the UCO and, according to the undisputed evidence of the UCO (corroborated by the covert recording of that meeting) played an active role in that transaction.  MacDonald not only volunteered information as to the price but he referred to having a 'boss' who was his supplier.

4. MacDonald was the one to whom the UCO paid the cash.

5. Higgins regularly contacted MacDonald to report on his dealings with the UCO - often within minutes of speaking to him; MacDonald actively participated in those discussions and at no time did he convey the impression he did not want to be involved.

6. On a number of occasions, Higgins and MacDonald discussed meeting in person; MacDonald would suggest that he come and meet Higgins (rather than talk over the phone).  It is obvious that MacDonald was attempting to minimise the risk of having his conversations with Higgins listened to.

7. Higgins told the UCO on a number of occasions that the supplier wanted payment before delivery (which for obvious reasons the UCO did not agree to).  Shortly after those conversations, Higgins reported to MacDonald what he had just discussed with the UCO.

8. The communications which form the basis of counts 4 ‑ 9 establish beyond doubt that MacDonald was dealing in drugs on a regular basis during the period 16 March - 14 May 2016.

9. During the period 16 March - 14 May 2016 MacDonald was using two telephones, one of which was a 'Soyes' (ie encrypted) phone.  The use of an encrypted device and/or multiple devices suggests that he was involved in drug dealing at a significant level - certainly above that of a user/dealer.

10. The absence of direct evidence that he was dealing in larger quantities than the quantities the subject of counts 4 ‑ 9 does not in my view weaken the effect of evidence considered as a whole.

11. In my view, the combination of these circumstances establishes beyond reasonable doubt that MacDonald was actively involved in Higgins' dealings with the UCO on 29 February 2016 and subsequently and that he went to considerable efforts to facilitate the supply of a kilogram of methylamphetamine to the UCO.

The accused's evidence at the trial

1. I turn now to consider Mr MacDonald's evidence.

2. Although an offender is not obliged to give evidence at a trial of issues to respond to a contention which he makes, a lack of explanation from him, may lead to a conclusion against him.[55]  As I have indicated, in the absence of a satisfactory explanation from him, I would find the State's assertions as to the aggravating circumstances established beyond reasonable doubt.

   [55] Ozan v The State of Western Australia [53]

3. I turn now to consider whether MacDonald's evidence at the trial and trial of issues gives rise to a reasonable doubt about the aggravating circumstances asserted by the State.

4. MacDonald gave evidence that he had known Higgins for three years.  He said that in 2016 they were close friends and had worked together in security.  He said that they had shared interests, including going to the gym.[56]  MacDonald said he was aware that Higgins was involved in dealing in drugs such as cocaine, MDMA, pills and steroids.  He said that he had used drugs himself but it was not until after his bike accident in 2016 that he began using methylamphetamine heavily.[57]

   [56] Trial ts 198

   [57] Trial ts 198

5. At the time of events in question, he was in a relationship with Gina Baghdasraf who was also a heavy drug user.  He described their relationship as 'up and down' and caused him to become addicted to drugs.[58]

   [58] Trial ts 200, 213, 214

6. MacDonald did not dispute that at the meeting on 29 February 2016 he had intended to convey the impression to the UCO that he had a supplier who could supply large quantities of methylamphetamine.  He admitted that he told the UCO that the price for a kilogram would be $192,500 or $5,500 for an ounce.  He agreed that he offered to sell the UCO a kilo of methylamphetamine.  He denied however that he had the means to supply it or in fact intended to do so.  In evidence-in-chief, he offered the following explanation:

   Yes.  So basically I did offer a kilo of meth to him, but on the understanding I was getting meth given to me from Dan Higgins.  The only reason I offered it was basically to talk on behalf of Dan as he had knew nothing about it, the price, the way it was all going to happen was up to Dan.[59]

   [59] Trial ts 207

7. MacDonald agreed that he had discussed with Higgins proposals to supply a large quantity of methylamphetamine to the UCO but denies that he intended to - or indeed that he had the authority to do so.

8. MacDonald's evidence was to the effect that he led Higgins to believe that he could facilitate the supply of larger quantities of methylamphetamine from another supplier.

9. MacDonald said that he was a user of methylamphetamine at the time and, because Higgins was supplying him with small quantities of methylamphetamine, he was trying to impress Higgins by giving him the (false) impression that he was able to access larger quantities and because he knew Higgins wanted to sell a large amount to the UCO.[60]

   [60] Trial ts 239

10. He said that he thought that Higgins was dealing with 'the Columbian' and that Higgins had told him that the Columbian was a supplier of methylamphetamine and cocaine.

11. MacDonald said that it was not until the end of March or mid‑April of 2016 that he started selling methylamphetamine.  He said he was being supplied with methylamphetamine by Higgins and another guy, whose name was Adam Francis.[61]

    [61] Trial ts 283, 286

12. Under cross-examination, MacDonald admitted that he was using 0.2 g - 0.5 g daily, was not working and was spending about $350 a day on drugs (although he would 'go halves' with friends).  He denied spending upwards of $2,000 per week.

13. He admitted that on 17 March 2016 there was a communication between him and Gina Baghdasraf which suggests that they were probably still in a relationship on 9 March 2016 (when the offence the subject of count 2 took place).

14. Mr MacDonald admitted that it appeared to be him in the surveillance footage walking across the road to Higgins' house on 10 March but denied that it was because he was eager to get the $15,000 and that is why he went there.

MacDonald's evidence at trial of issues

1. At the trial of the issues MacDonald gave evidence that during February, March and April 2016 he was using methylamphetamine.  He had started taking that after his motorbike accident at the end of January or early February.  He said that he mainly sourced his methylamphetamine from a street-level dealer by the name of Adam Francis but the largest amount he had ever been supplied with was an 'eight ball' or 3.5 g of methylamphetamine.  He denied asking Francis to supply him with a kilogram.  MacDonald said he did receive methylamphetamine from Higgins but could not say how much.[62]

   [62] Trial of issues ts 412

2. MacDonald said he did not ask Higgins not to use his name when speaking to the UCO.  He said that he was getting 'free meth' from Higgins but not anything else.  He said he never received any money from Higgins nor did he supply any drugs to him.[63]

   [63] Trial of issues 413

3. He recalled telling the UCO that the price of the kilogram was $192,500.  He said that he was 'under the impression I was going to say the price of an ounce and - and it snowballed into that when I got there with Dan.  But it was for an exchange of meth he was giving me.'[64]  He said that Higgins had given him methylamphetamine 'to speak to Tyson (ie the UCO) as he didn't know anything about meth'.[65]  Higgins had told him that Tyson was 'his mate'.[66]

   [64] Trial of issues ts 414

   [65] Trial of issues ts 414

   [66] Trial of issues ts 414

4. MacDonald could not recall if he met Higgins on 17 March 2016.  He recalls Higgins had gone travelling to Melbourne in March of 2016 for a body building competition.[67]

   [67] Trial of issues ts 416

5. He denied that he had agreed to give Higgins any drugs or source methylamphetamine for him and specifically, did not agree to source and provide him with a kilogram of methylamphetamine.[68]

   [68] Trial of issues ts 417

6. MacDonald said that Higgins was using his (MacDonald's) name when speaking to the UCO.  He said that Higgins had told him he was using his name as he was 'kind of delaying the deal that he was going to do just because he had sourcing issues'.[69]

   [69] Trial of issues ts 417

7. MacDonald admits that in a conversation on 31 March 2016, he agreed to meet up with him.  He said that he was planning to see him for 'just the usual catch up.  We were friends so just - it was nothing out of the ordinary'.[70]  He denied that it was to discuss a drugs transaction.[71]

   [70] Trial of issues ts 418

   [71] Trial of issues ts 418

8. MacDonald's evidence was that he believed Higgins had another supplier.[72]

   [72] Trial of issues ts 420

9. MacDonald agreed that he spoke to Higgins on 7 April and discussed meeting at Nando's on Beaufort Street.  He denied that this was anything to do with drugs.[73]

   [73] Trial of issues ts 422

10. MacDonald denied that he was interested in what was occurring between Higgins and the UCO.  He denies saying to Higgins that he would supply him with a kilogram of methylamphetamine or that he had any possibility of doing so.[74]

    [74] Trial of issues ts 424

11. MacDonald agreed that he did not tell Higgins that he did not want to be involved in a transaction involving the supply of a kilo of methylamphetamine.  He denied that he expected to be paid if Higgins was able to complete the transaction with the UCO.  He said Higgins had told him that he was trying to engage in delaying tactics with the UCO because of the supply issue.[75]

    [75] Trial of issues ts 425

12. MacDonald agreed that he spoke to Higgins on the phone on 4 April 2016 and Higgins had referred to catching up with 'that fella' (the UCO).[76]  In that call, MacDonald agreed that he said 'yeah, I still haven't even caught up with mate yet'.  MacDonald's evidence was that the mate he was referring to was Adam Francis.[77]

    [76] Trial of issues ts 427

    [77] Trial of issues ts 428

13. MacDonald's evidence was in relation to the meeting on 29 February 2016, that what he had told the UCO (that his methylamphetamine had come from his 'mate' and his 'boss') was incorrect.  He had told the UCO an untruth because Higgins had needed time to source the kilo (of methylamphetamine).[78]

    [78] Trial of issues ts 429

14. MacDonald said that Higgins had asked him to come along to 'talk about meth as he didn't know anything about [it]' and had only 'given me free samples here and there'.[79]

    [79] Trial of issues ts 430

15. MacDonald said that Higgins had given him the price for a kilogram prior to the UCO arriving.  Under cross-examination, he agreed that he had said that he was supposed to have researched the price but Higgins had given him 'ball park figures' but he was not too sure of the price.[80]

    [80] Trial of issues ts 431

16. MacDonald agreed that at the trial he had been asked by Higgins to research a figure because Higgins 'didn't know anything about meth or the sale of meth'.

17. He said that he had gone to the meeting on 29 February on the understanding that he was talking about an ounce and then it 'got sprung on the kilo'.  He said that at the time he was using drugs and 'I wasn't even really thinking straight'.[81]

    [81] Trial of issues ts 431

18. MacDonald agreed that when he met with the UCO on 29 February at Higgins' place he told the UCO to give the money to him so that he could 'drop it off to my mate'.  He denied that he took the money with him and said he left the money with Higgins.[82]

    [82] Trial of issues ts 432

19. MacDonald explained that he told the UCO that 'his mate' always had a big amount but this was 'fluffery'.  He said that he talked about having seen a (kilo) at his mate's place to 'paint the picture that Dan was connected ... that he could get the kilo'.[83]

    [83] Trial of issues ts 433

20. MacDonald admitted in cross-examination that in the meeting with the UCO he had gone to quite a bit of trouble to make it appear to him that he had a supplier.[84]  He admitted that he had talked about encryption devices such as Blackberrys.[85]

    [84] Trial of issues ts 434

    [85] Trial of issues ts 435

21. MacDonald agreed that Higgins phoned him on many occasions to talk about the UCO.  He agreed that at no point did he say to Higgins that it had nothing to do with him.[86]

    [86] Trial of issues ts 436

22. MacDonald denied that he knew why Higgins was using his name.[87]

    [87] Trial of issues ts 437

23. MacDonald agreed in cross-examination that on 10 March 2016, being the date that Higgins had sold 55 g of methylamphetamine to the UCO, he was in contact with Higgins.[88]

    [88] Trial of issues ts 439

24. MacDonald agreed under cross-examination that on 13 March 2016 he had a discussion with Higgins about wanting to meet in person and agreed that he did not want to talk about drug matters on the phone.[89]  He agreed that he did not want to talk about the UCO on the phone with Higgins.  But he disagreed that he did not want to talk to Higgins about the one kilogram deal.[90]

    [89] Trial of issues ts 444

    [90] Trial of issues ts 444

1. MacDonald agreed that on 14 March, he enquired of Higgins whether he had just spoken over the phone with the UCO but denied it was because he had an interest in supplying a kilogram of methylamphetamine.[91]

   [91] Trial of issues ts 445 - 447

2. When challenged as to why he had asked about the UCO, he replied 'because (Higgins had) been telling me everything else about Tyson ... I was basically a shoulder to cry on cause I was the only one that knew Tyson.  And he told me everything that was happening in terms of his dealings and potential dealings with Tyson'.[92]

   [92] Trial of issues ts 447

3. MacDonald agreed that on 15 March 2016, he spoke to Higgins on the phone and suggested seeing him at the Penthouse that night.[93]

   [93] Trial of issues ts 451

4. He denied that the reference to Higgins' 'mate' was a reference to him (MacDonald) and said that it must have been a reference to someone else.[94]

   [94] Trial of issues ts 453

5. MacDonald said that every time that Higgins called him he was cooked on drugs.[95]  Under cross-examination however he said that during some of the calls he was 'cooked on drugs' but admits that in a number of calls he is yawning.[96]  He said that methylamphetamine made him tired and chilled and that he was 'just all over the place'.  He said he 'wasn't kind of in control as such'.[97]

   [95] Trial of issues ts 459

   [96] Trial of issues ts 459

   [97] Trial of issues 460

6. Mr MacDonald said that during his conversation with Higgins on 31 March 2016, the suggestion that Higgins sell the UCO ounces instead of a kilo came from his friend Adam Francis but admits that he did not mention any names during that call or did not tell Higgins that it has been suggested by somebody else.[98]  He said 'I was just telling Dan what another dealer had said'.[99]

   [98] Trial ts 468 - 469

   [99] Trial ts 469

Findings in relation to MacDonald's credibility

1. The defence submits that I should be cautious to accept the assertions of Higgins to the UCO about MacDonald's involvement and that MacDonald gave a credible explanation for pretending to be able to facilitate the supply of drugs.

2. The defence submits that, although the communications between Higgins and the UCO are admissible pursuant to the co-conspirator's rule, there are factors affecting the weight of that evidence which should cause me to have a reasonable doubt about the veracity of Higgins' representations to the UCO.

3. The defence submits that the weight of the evidence is affected by an inability for them to have cross-examined Higgins and there is a lack of independent corroborative evidence of Higgins' assertions to the UCO.

4. Further, the defence submits there are plausible alternative reasons for Higgins to have lied to the UCO about MacDonald's ability to procure a large quantity of methylamphetamine.  The defence submits that Higgins had a motive to lie to the UCO about MacDonald's involvement because he wanted to retain the UCO as a customer and was having difficulties sourcing a large quantity of methylamphetamine from his usual sources and wanted to 'keep the UCO on the line' until he was able to access drugs.

5. I do not accept that the defence submissions provide a credible motive for Higgins to have made up a story about MacDonald's involvement.  Nor can I accept that MacDonald had any credible motive to have lied to Higgins about his ability to source a large quantity of methylamphetamine.

6. I was unimpressed with MacDonald's evidence.  His explanations as to his involvement with the transaction on 29 February 2016 and his communications with Higgins were just not plausible.  My reasons for so finding are as follows.

7. MacDonald admitted that he did offer to sell a kilogram of methylamphetamine to the UCO but said it was on the understanding that Higgins would supply him with methylamphetamine.  He said that he did not want the UCO to know he was a user.[100]  This is an explanation which does not make sense:  If Higgins was able to supply MacDonald with methylamphetamine, then there would be no need to ask MacDonald to source some for him.

   [100] Trial ts 208

8. MacDonald said that Higgins knew nothing about methylamphetamine which is why he had asked him if he could come and meet with the UCO and represent that he could arrange sales.  This is inconsistent with the evidence that MacDonald gave about Higgins having supplied him on occasions with a variety of drugs including methylamphetamine.  It does not stand to reason that a drug dealer would know nothing about methylamphetamine.

9. MacDonald denied that, at the meeting with the UCO on 29 February 2016, he was responsible for the supply of the half ounce and that it was in fact Higgins who supplied the half ounce.  He said that Higgins had supplied him with drugs on that occasion for having helped Higgins out.[101]  This is inconsistent with the UCO giving the $4,000 to him directly and not to Higgins.

   [101] Trial ts 228

10. MacDonald's evidence was that prior to the meeting on 29 February 2016, he had been asked by Higgins to make enquiries about the price of an ounce of methylamphetamine.[102]  He gave evidence that he had been provided a small sample of methylamphetamine by Higgins to see if it was good quality.  It is highly unlikely that Higgins would have needed to ask MacDonald about the price of drugs if Higgins had supplied MacDonald with methylamphetamine on previous occasions.

    [102] Trial ts 211

11. Whilst I might be able to accept that MacDonald as a user might be invited to sample the methylamphetamine, I find his explanation that MacDonald had been invited to attend the meeting with the UCO to tell him what the price of an ounce was, to be highly unlikely.[103]  That is because, if Higgins had not known the price of an ounce, he could have asked his supplier himself and then told the UCO himself.  Even if the information as to price came from MacDonald, there was no need for him to be present to convey that information.

    [103] Trial ts 223

12. In my view, the only reasonable explanation for the presence of MacDonald at the meeting on 29 February 2016 was because MacDonald had the necessary contacts to supply the sort of quantities that the UCO was interested in purchasing.

13. At the meeting on 29 February 2016, MacDonald said a number of things to the UCO to suggest that he had a supplier who always had a big amount and he had seen a 'key' at his place before (a 'key' referring to a kilo).  I do not accept that there was any plausible reason for him to have lied about that fact.

14. I find that the frequency of communication between Higgins and MacDonald following Higgins's contacts with the UCO establish beyond any doubt that MacDonald was actively trying to facilitate the sale of a large quantity of methylamphetamine to the UCO.

15. The defence submits that the fact that MacDonald was later involved in engaging in relatively small transactions (ie, the ones the subject of counts 4 ‑ 9) is inconsistent with him being in the business of organising a large scale supply of methylamphetamine.  That is a submission that I cannot accept.  Just because MacDonald failed in his attempt to facilitate a large scale sale to the UCO together with Higgins, is not inconsistent with him supplying relatively small quantities to friends and associates.

16. The fact that MacDonald was 'surveillance aware' when talking to Higgins suggest that he was concerned about detection from law enforcement authorities and is consistent with him dealing at a high level.

17. MacDonald's evidence that he was trying to keep on Higgins' good side so that he would receive a ready supply of methylamphetamine simply does not make sense.  If Higgins was supplying methylamphetamine to MacDonald (and not the other way around), then Higgins would not have needed MacDonald's help at the meeting on 29 February 2017 or subsequently.

18. I accept the evidence of the UCO that at the meeting on 29 February 2016, he counted out the $4,000 and paid it to MacDonald.  I accept, therefore, that MacDonald received payment for the supply on that occasion.  That is consistent with MacDonald being an integral part of the dealings with the UCO on that occasion at least.  I am unable, however, to determine how much of that money he retained or how much he provided to Higgins.

19. In my view the evidence established beyond reasonable doubt that MacDonald played a significant and integral role in attempting to source the methylamphetamine for sale to the UCO.

Findings

1. In relation to count 1 I find that MacDonald did supply the methylamphetamine the subject of count 1 and that he was paid $4,000 for it.  I am unable to determine how much of that $4,000 was given to Higgins.

2. In relation to count 3 I find that MacDonald was actively trying to source a kilogram of methylamphetamine from someone known to him whom he believed was able to do so to facilitate the supply of that amount to the UCO.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

   IG
   ASSOCIATE TO JUDGE LONSDALE

   11 MAY 2018