The State of Western Australia v Taylor - [2021] WADC 122

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TAYLOR [2021] WADC 122
CORAM:   RUSSELL DCJ
HEARD:   11 OCTOBER 2021
DELIVERED          :   9 DECEMBER 2021
FILE NO/S:   IND 372 of 2020
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DAVID JASON TAYLOR

Catchwords:

Sentencing - Trial of issues - Possession of methylamphetamine with intent to sell or supply - Possession of heroin with intent to sell or supply - Whether offender intended to sell prohibited drug - Whether offending aggravated by commerciality

Legislation:

Criminal Code Compilation Act 1913 (WA), s 417(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(a)

Result:

Prosecution failed to discharge onus of proof that offender intended to sell a portion of the prohibited drugs

Offender failed to discharge onus of proof that he did not intend to supply all of the prohibited drugs on the basis contended

Offender to be sentenced on basis of sale or supply

Representation:

Counsel:

Applicant	:	Mr D A J McDonald
Accused	:	Mr J D Hawkins

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	J D Hawkins & Associates

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

Law v The State of Western Australia [2009] WASCA 193
R v Lobban [2001] SASC 392; (2001) 80 SASR 550
R v Olbrich (1999) 199 CLR 270
R v Storey [1988] 1 VR 359
The State of Western Australia v Thompson [2014] WASCA 108

RUSSELL DCJ:

Introduction

Mr David Jason Taylor was charged on indictment 372 of 2020, that on 13 April 2019 at Thornlie:
1.On count 1, he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA).
2.On count 2, he had in his possession a prohibited drug, namely heroin, with intent to sell or supply it to another, contrary to MDA s 6(1)(a); and
3.On count 3, he had in his possession an item that was capable of being stolen, namely cash, that was reasonably suspected to have been unlawfully obtained, contrary to s 417(1) of the Criminal Code Compilation Act 1913 (WA).
On 30 September 2021, Mr Taylor pleaded guilty to counts 1 and 2.
Count 3 was discontinued on 11 October 2021.
There was a dispute as to the facts relating to Mr Taylor's intent under s 6(1)(a) of the MDA for the purpose of sentencing and the matter was listed before me for a trial of the issues on 11 October 2021.
For the reasons that follow, I am unable to make positive findings that the offending was aggravated by commerciality, nor that it is mitigated on the basis contended by Mr Taylor. As such, Mr Taylor should be sentenced on the basis that he intended to sell or supply:
1.some of the 13.5 grams of methylamphetamine, the subject of count 1; and
2.all of the 20.21 grams of heroin, the subject of count 2.

The facts relied upon by the State

The facts relied upon by the State are those set out in the Amended Statement of Material Facts dated 2 April 2020, which were read out by counsel for the State. They are as follows:
At 8.18 am on 13 April 2019, Armadale detectives forced entry and executed a Misuse of Drugs Act search warrant at the address in Thornlie referred to. The offender, Mr Taylor, was located inside the house with his partner, Ms Kristy Fyfe, and their four children.
During the search, police located a shortbread biscuit tin in the cupboard above the microwave in the kitchen, containing two medium clip seal sandwich bags on top of several smaller, unused clip seal bags. Inside the first clip seal bag was another clip seal bag and two plastic spoons. One was orange and one was white. That clip seal bag contained 13.5 grams of 74% pure methamphetamine, the subject of count 1.
Three DNA swabs were taken from this item, and this was item 8 from the search warrant. There was one taken from the two clip seal bags, and one each from the spoons. Each swab returned mixed profiles consistent with the offender being a contributor.
Inside the second clip seal sandwich bag, which was item 9 from the search warrant, were three more clip seal bags and a green straw. One of those bags contained 19.9 grams of 79% pure heroin, and another contained 0.3 grams of heroin, for a total of 20.21 grams. Those drugs are the subject of count 2.
Two DNA swabs were taken from item 9, one from the four clip seal bags and one from the green tube inside the first clip seal bags. Both of those items returned mixed profiles consistent with the offender being a contributor as well. On a shelf near the biscuit tin, police also located a set of working digital scales, and on a shelf in the kitchen pantry, located two more clip seal sandwich bags containing $3,100 and $3,700 cash. The offender told police at the time that the cash and the scales belonged to him.
Inside the microwave was another $150 cash, and that was sitting loose. And there was also a small bag of loose-leaf cannabis, again in a clip seal sandwich bag.
The total quantity of cash found by police was $6,950.

Disputed issues of fact

Mr Taylor's pleas of guilty necessarily involve admissions by him of the elements of the offences the subject of counts 1 and 2. It is not disputed that he had in his possession the quantities of methylamphetamine and heroin alleged in counts 1 and 2. Nor is there any dispute as to the purity of the drugs in each case.
The disputed issues of fact giving rise to the trial of issues in this matter relate to Mr Taylor's intention with respect to the drugs the subject of counts 1 and 2. That is, whether he intended to sell the drugs in each case or to supply them for profit or commercial gain.
The State says that Mr Taylor intended not only to supply the drugs the subject of the charges but he also intended to sell at least some portion of both the heroin and the methylamphetamine and the State invites the court to draw that inference from the other items that were found in the search. The State points in particular, to the empty clip seal bags, digital scales, spoons and straws in combination with the significant quantity of cash and the value of the drugs relative to Mr Taylor's, and his partner, Ms Fyfe's financial situation.
The defence position is that Mr Taylor did not possess any of the drugs with intent to sell them or to supply them for commercial gain. Rather, he supplied the methylamphetamine only to Ms Fyfe but not in return for any payment for the drugs and he was holding the heroin merely as bailee to be returned to the person he was holding it for, not with the intention to sell it or supply it for commercial gain.

Principles applicable to the trial of the issues

The principles relating to the basis upon which a sentencing judge must impose sentence where the offender pleads guilty were set out by the Court of Appeal in Law v The State of Western Australia.[1] Those principles include the following.
[1] Law v The State of Western Australia [2009] WASCA 193 [26] - [34].
If the prosecution seeks to have a sentencing judge take a matter into account as an aggravating circumstance, it will be for the prosecution to bring that matter to the judge's attention and, if necessary, call evidence about it: R v Olbrich.[2]
[2] R v Olbrich (1999) 199 CLR 270 [25].
If the offender seeks to have the sentencing judge take a matter into account as a mitigating circumstance, it will be for the offender to bring that matter to the judge's attention and, if necessary, call evidence about it: R vOlbrich [25].
It will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstance, as the case may be, if the asserted matter is controverted by the other party or if the sentencing judge is not prepared to act on the assertion, even though not controverted by the other party: Olbrich [25].
The prosecution must prove an aggravating circumstance beyond reasonable doubt. The offender must prove a mitigating circumstance on the balance of probabilities: Olbrich [25]; R v Storey [1988] 1 VR 359, 369.
If a sentencing judge is not persuaded of the existence of a particular fact, whether mitigating or aggravating, the absence of that fact does not prove the converse fact, adverse to or in favour of the offender, as the case may be. Where the sentencing judge is not persuaded of the existence of a fact, that fact does not exist for the purposes of sentencing: R v Lobban.[3]
[3]R v Lobban [2001] SASC 392; (2001) 80 SASR 550 [32].
Relevantly, in this trial of the issues, the State must prove the aggravating circumstance it relies upon beyond reasonable doubt. That is that Mr Taylor intended to sell the methylamphetamine and heroin in his possession, or at least some portion of those drugs in relation to each count. Mr Taylor must prove as a mitigating circumstance on the balance of probabilities that he only intended to supply the drugs as he contends. That is, by supplying some of the methylamphetamine to his partner and supplying the heroin to the dealer by returning it to him.
In The State of Western Australia v Thompson,[4] McLure P said [26]:
The identification of the offender's precise intention under s 6(1)(a) of the Act is not an essential aspect of the sentencing process (Olbrich [13]), just as the quantity of the drug in the respondent's possession intended for his own use as distinct from its sale and/or supply is not an essential aspect: Duong v The State of Western Australia [2006] WASCA 110 [6]; Marker v The Queen (2002) 135 A Crim R 55 [114] - [116]. If the evidence does not enable the sentencing judge to make positive findings on these matters, the offender must be sentenced for the offence he committed, which is in terms of 'sale or supply'.
[4] The State of Western Australia v Thompson [2014] WASCA 108.

Prosecution case and evidence

At the trial of the issues, the prosecution adduced evidence from Detective Luke Hartley Smith.
Detective Smith gave evidence as a drug expert and also in relation to the execution of the search warrant on 13 April 2019 and subsequent investigation. His evidence, and the exhibits tendered through him, were as follows.
Detective Smith has been an officer of the Western Australian Police Force for nine years and has been a detective for approximately four years. In his nine years as a police officer he has attended over 100 Misuse of Drugs Act search warrants, including at least two to three such search warrants a week in the last year. He has gained knowledge and expertise in illicit drugs and drug dealing, including of methylamphetamine and heroin, in the course of his duties executing those search warrants, conducting vehicle stops and searches, seizing drugs and investigations relating to charges brought in relation to drug offences.
He executed the search warrant on 13 April 2019 together with five other officers. He was the investigating officer. Present when the search warrant was executed were Mr Taylor, his partner Ms Fyfe and their four children.
The search was electronically visually recorded. A DVD containing the video recording of the search, which had been edited by agreement, is Exhibit 1. Also tendered through Detective Smith were:
1.Bundle of 5 photographs taken during the search warrant on 13 April 2019 (Exhibit 2).
2.Bundle of 5 photographs numbered 1, 2, 4, 5 & 6 and the certificate of analyst date 26 July 2019 numbered 3 (Exhibit 3).
3.Bundle of 5 photographs number 1 - 4 and 7 and two certificates of analyst dated 26 July 2019 numbered 5 and 6 (Exhibit 4).
It is not in dispute that, during the search, the following things relevant to the offences in the indictment were located:
1.A shortbread biscuit tin in the cupboard above the microwave in the kitchen, containing:
(a)one clip seal bag containing 13.5 grams of 74% pure methylamphetamine, a white plastic spoon and an orange plastic spoon. (These items were designated as item 8 in the exhibit log of items seized in the search warrant. The certificate of analyst relating to these drugs was tendered and forms part of Exhibit 3); and
(b)another clip seal bag containing three more clip seal bags and a green straw or tube. One of those bags contained 19.9 grams of 79% pure heroin, and the other contained 0.3 grams of heroin, a total of 20.21 grams. (These items were designated as item 9 in the exhibit log of items seized in the search warrant. The certificate of analyst relating to these drugs was tendered and forms part of Exhibit 4).
2.$6,950 in cash made up of $3,700 and $3,100 in two separate clip seal bags at the back of a shelf in the kitchen pantry separate to the biscuit tin and $150 in loose cash in the microwave together with a small bag of cannabis. (The cannabis is not subject to any of the charges on the indictment).
3.A set of working digital scales on a shelf in the pantry near the biscuit tin.
4.A box of empty, unused clip seal bags (also located in the pantry).
Mr Taylor said to Detective Smith and the other officers present at the time of the search that the cash and the scales belonged to him.
Three DNA swabs were taken from item 8, the clip seal bags containing the 13.5 grams of methylamphetamine and the two plastic spoons. Each swab returned mixed profiles consistent with Mr Taylor being a contributor. This is recorded in the table summarising the forensic results in the PathWest Laboratory report, which is Exhibit 5 and is not disputed.
Two DNA swabs were taken from item 9, one from the four clip seal bags and one from the green tube inside the first clip seal bag. Both of those items returned mixed profiles consistent with Mr Taylor being a contributor. This is also recorded in the table summarising the DNA results in the PathWest Laboratory report, which is Exhibit 5 and is not disputed.
Detective Smith made inquiries in his role as investigating officer of financial institutions in respect of Mr Taylor's and Ms Fyfe's finances. He received the following financial records in response to those inquiries:
1.Commonwealth Bank statement of Mr Taylor for the period 1 October 2018 to 12 April 2019, which is Exhibit 6; and
2.Statement of Bankwest customer transactions for Ms Fyfe for the period 11 January 2019 to 8 April 2019, which is Exhibit 7.
Detective Smith also gave expert opinion evidence about the use and sale of illicit drugs, including as to the terminology and items used by drug dealers, the weight and quantities in which drugs are commonly sold and the price at which they were commonly sold at the time the drugs were seized - in April 2019. His evidence in relation to those matters was, in general terms, as follows.
Methylamphetamine is commonly sold in the following quantities (referred to as a point (0.1 grams), a half weight (0.5 grams), a weight (1 gram), a half ball (1.75 grams), a ball or an eight ball (3.5 grams), a quarter (7 grams), half an ounce (14 grams) and an ounce (28 grams)). Based on the pricing index, the approximate price for the following quantities in April 2019 was:
1.a point (0.1 grams) - $100;
2.a half weight (0.5 grams) - $600;
3.a weight (1 gram) - over $700;
4.a ball or an eight ball (3.5 grams) - $1,350;
5.half an ounce (14 grams) - $3,400; and
6.an ounce (28 grams) - $5,000.
Detective Smith's estimate as to the value of 13.5 grams of methylamphetamine in April 2019 based on the pricing index he had referred to was in the region of $3,400, if purchased as half an ounce. If sold as points at $100 a point multiplied by 135 points, the total value could have been up to $13,500.
The purity of the methylamphetamine found in the search was fairly high at 74%.
Illicit drugs are usually purchased with cash, either with payment upfront or extended out on a tick list. Where someone has been selling drugs, it is very common to find cash. It will depend on the dealer whether they use and have tick lists, or not.
The quantity of methylamphetamine used ranges from a point at a time upwards depending on the user's tolerance and the purity. A glass smoking pipe is usually used to take methylamphetamine. It may also be taken orally or injected using a needle, though both of those methods are less common.
Heroin is less common than methylamphetamine and more expensive. The approximate price for an ounce of heroin in April 2019 was $9,000. It could be broken down and sold in smaller quantities, however the pricing information available for heroin is more limited and not available for smaller quantities for April 2019.
Heroin is typically injected using a needle.
Plastic bongs typically used for smoking cannabis were located in the search, but no smoking implements associated with methylamphetamine nor any needles were located.
Items commonly associated with drug dealing include empty clip seal bags, scales, spoons and straws to assist with weighing of the drugs, gloves and tick lists. Straws may also be used to snort drugs. An ounce or larger amounts of drugs are normally kept in a medium‑sized clip seal bag and smaller clip seal bags are used when drugs are broken down into points, half-weights and weights for sale.
It is also quite common for those engaged in drug dealing to have multiple mobile phones with or without encryption software, security measures such as CCTV and weapons or baseball bats or other items that may be used for protection, though it will vary from case to case and those items are not always present and not always used by those dealing in drugs.
There was no CCTV at the premises. No weapons or other items commonly associated with protection nor anything in the nature of a tick list was located during the search. There were knives in the kitchen.
Mr Taylor only had one mobile phone, which he provided the PIN for and which was analysed. There was no material on that mobile phone that indicated any discussion about selling illicit substances.
The digital scales found in the kitchen were not subject to DNA or other analysis and Detective Smith was unable to say whether or not there were any traces of methylamphetamine or heroin on them.

Defence case

Mr Taylor gave evidence on his own behalf and called his partner, Ms Kristy Lee Fyfe, as a witness. Their evidence was as follows.

Mr Taylor's evidence

Mr Taylor is 49 years old. At the time of the offending in April 2019, he was 47 years old. He has been in a de facto relationship with his partner, Ms Fyfe, for 20 years. They have four children together, who are now aged 19 years, 12 years and 4-year-old twins.
In April 2019, Mr Taylor worked as a labourer and concreter on a casual, cash in hand basis. He earned about $750 a week, on average, depending on how many jobs he did. He received $250 each time he worked on a concrete pour. He had no other income and did not receive any government benefits.
He did not contribute to the household bills. Ms Fyfe had the lease for the house, and she paid the rent, all of the household bills and for food.
Mr Taylor first started taking drugs when he was about 19 years old. At that time, he took amphetamines and smoked cannabis, initially at weekends. When he was about 24 or 25 years old, Mr Taylor was admitted to Graylands Hospital with (using his words) 'speed psychosis'. His drug use reduced when he met Ms Fyfe and they had children.
In 2018, Mr Taylor's mother passed away, which had a palpable effect on him and his use of methylamphetamine increased significantly. He was using a point (0.1 grams) to 2 points (0.2 grams) of methylamphetamine a day up until his mother's death. His methylamphetamine use increased following the loss of his mother to injecting a half-weight (0.5 grams) a day. He also used methylamphetamine with Ms Fyfe.
Mr Taylor said that he also smoked cannabis using a bong and that he did not use heroin.

Mr Taylor's evidence as to the amount of methylamphetamine that he and Ms Fyfe used in 2019 was inconsistent. At one point in his evidence, he said that 13.5 grams of methylamphetamine (the amount found in the search) would last him and Ms Fyfe about two weeks in 2019. In cross‑examination he said he used 0.5 grams in a shot and had two shots a day at least, so probably a gram a day, though he did not use every day. He estimated that he was using about 2 grams a week and that Ms Fyfe probably used the same or probably a bit less than him a week. He later said that Ms Fyfe used about 2 grams of methylamphetamine a week.
Mr Taylor accepted in cross-examination that, in April 2019, a point (0.1 grams) of methylamphetamine cost about $100 and 2 grams would have cost about $2,000. When asked how he supported his use, he said he was not paying for the drugs he used in cash. He said that he helped out his dealer by collecting money for him and 'keeping his stash' (the heroin) for him. He said he owed his dealer about $2,000 for drugs. Mr Taylor did not identify the dealer.
He said that the methylamphetamine and heroin located in the biscuit tin during the search was given to him by his dealer in March 2019, a month before the search. He said that he was looking after the drugs for his dealer and he and Ms Fyfe were allowed to use as much of the methylamphetamine as they wanted to in return for Mr Taylor holding the heroin for him.
Mr Taylor said between March and April 2019 he collected money for his dealer three or four times. He knew that the money he was collecting was for drugs, sometimes up to $50,000 at a time.
When asked about the items in the biscuit tin, Mr Taylor said he had touched the two spoons to get methylamphetamine out that he used. He said he thinks he made the green straw from one of the kid's drinks. He said he never used it to take heroin out of the bag. He said he used the digital scales to weigh his methylamphetamine he used, not to sell it.
Mr Taylor denied using the clip seal bags found in the search to package and sell drugs. He said that the clip seal bags in his cupboard were for lunches and he gave some to his dealer to use if he asked for them when he came around. He denied using them to package and sell drugs.
Mr Taylor denied that the $6,800 in cash located in the search came from him selling drugs. When asked why he told police at the time of the search that the cash was his, he said 'it's like we're one, me and Kristy'. He said the money came from Ms Fyfe's 'nan' so it was effectively Ms Fyfe's money, but he said it was his because they are partners. He said it was to pay for her nan's funeral.
He said that the $150 found in the microwave was in there to keep it away from the kids. He denied it was from selling drugs. He said it was probably his from when he worked or Ms Fyfe's. It belonged to one of them, but he could not say who. He thinks he put it in the microwave. When asked about it again, he said he thought the $150 was probably his.

Ms Fyfe's evidence

Ms Fyfe is 42 years old and has been in a relationship with Mr Taylor for 20 years. They have four children together aged 19 years, 12 years and 4-year-old twins.
Ms Fyfe said that in 2018 and 2019 Mr Taylor did a bit of work in concreting, but it was not a full‑time job. Ms Fyfe was not employed at that time. She was a mother and a carer for her grandmother. She said her grandmother gave her money numerous times.
Ms Fyfe was aware that Mr Taylor used drugs (methylamphetamine) when she met him 20 years ago. She described that he used a fair bit and then his drug use slowed down, and he stopped completely but then his mother passed away in 2019 and his methylamphetamine use went out of control. She described his relationship with his mother as unbreakable and said that his mother's death tore him apart. She said he was never the same, he was broken and his drug use increased tremendously.
Ms Fyfe said she has used drugs since she was 13 years old. In 2019, she was smoking cannabis and injecting and snorting methylamphetamine. She said that Mr Taylor injected methylamphetamine, when asked how he ingested it.
In relation to the biscuit tin and the drugs contained in it that were located during the search, Ms Fyfe said the dealer dropped it off at their house a week, two weeks at most, before the search warrant. When asked to confirm how long, she said maybe two weeks. She said that the heroin was there for Mr Taylor to hold and if he held it, Ms Fyfe and Mr Taylor got to use the methylamphetamine. She said that Mr Taylor did not do anything else with the heroin. She said that they both used the methylamphetamine. She used it on her own and with him.
She said that the dealer came to their house while she was there a few times (probably three or four times) in the two‑week period between bringing the drugs in the biscuit tin and the search. She said that he came over, gave Mr Taylor the biscuit tin and left. Mr Taylor said to her that he was holding it for his mate and in return, 'we get to use the meth that's inside of it'.
She said she had used the straw that was in the heroin bag to snort methylamphetamine.
In 2019, Ms Fyfe was injecting two or three points most days. She had some days off. She also smoked cannabis using bongs they had in the house. She said she did not buy the methylamphetamine, she got it off Mr Taylor. He did not sell it to her. She said she just took it. She said if he did not give it to her, she would kick him out of her house.
Ms Fyfe said that she used clip seal bags like the ones shown in photograph 5 in Exhibit 2 (the box located in the pantry) to put snacks in for the twins. She denied they were used for the packaging or sale of illicit drugs.
In relation to the two bags of money found, totalling $6,800, Ms Fyfe said that money belongs to her. She said that she was the one that put it in the two bags in her pantry with her food a few days before (the search) because her father had passed away and she split the money in half - one half to live off and the other to give to her father's partner to pay for or contribute to her father's funeral.
Ms Fyfe said that over the course of a few years, she received $60,000 from her grandmother. She received $20,000 from her grandmother on 20 August 2018. She paid $10,000 into her daughter's account so she had something from her grandmother and kept $10,000 of it in cash for herself.
Ms Fyfe said that she used that money for living expenses and taking the kids out. She did not use it for rent or food, which she paid for from her pension. Neither she nor Mr Taylor used the money from her grandmother for drugs.
She paid all the bills, which included $350 a week for rent, $100 a week for power and $200 a week for food. At the time of the search, in April 2019, Mr Taylor was not working very much, and he did not contribute to the rent or bills. She said that she did not pay the $10,000 that she received from her grandmother into the bank because she needed it to live off and it was easier for her to keep the cash. When asked why she could not use her bank card, she said she had a limit of $1,000 per day on her card and if she withdrew money to pay her rent and then paid her bills on her card she could not spend anything else. She would have to wait until the next day. She confirmed that her bank statements showed that from at least January 2019, she withdrew $370 in cash from the ATM to pay her rent each Friday.
When asked if she put the $150 in cash in the microwave, Ms Fyfe said she probably did and then when asked if she recalled doing it she said 'Yeah, I did'. She said she could not recall why she put it in the microwave, and that her head was scattered.

Findings of fact on the trial of issues

In considering all of the evidence as a whole, I find that parts of Mr Taylor's and Ms Fyfe's evidence lacked credibility. There were inconsistencies between them and some of the matters stated were implausible.
I remind myself that I can accept some of their evidence and reject other parts of their evidence.
As to the aggravating circumstance the State seeks to rely on for the purpose of sentencing, whilst the indicia of drug dealing found in the search suggest that Mr Taylor may have been involved in dealing in drugs for commercial gain, I am not satisfied beyond reasonable doubt that Mr Taylor intended to sell part of the methylamphetamine or part of the heroin in his possession. Nor is there sufficient evidence upon which I can be satisfied beyond reasonable doubt that the offending involved commerciality.
It is not in dispute that a number of items associated with the sale of drugs were found in the search, including empty clip seal bags, digital scales, spoons and straws. There was also the large amount of cash that was found during the search.
Whilst the clip seal bags in the box in the pantry may have been used for packaging drugs for sale, that is not the only inference reasonably available. The alternative explanations put forward by Mr Taylor and Ms Fyfe that they were used for lunches and snacks for the younger children are also available.
Also, though it may be inferred that the digital scales, which Mr Taylor admitted were his, were used to weigh and package drugs for sale, I find it is also open to infer, as explained by Mr Taylor, that he used the scales to weigh out drugs for his own use.
Similarly, I am unable to accept that the only reasonable inference is that the spoons and straw found with the drugs were used by Mr Taylor in connection with him dealing in the drugs for commercial gain. I accept that both Mr Taylor and Ms Fyfe were active users of methylamphetamine and used at least 2 grams of that drug each week and Mr Taylor likely used more. Mr Taylor gave evidence that he used the spoons and Ms Fyfe gave evidence that she used the straw as part of their own drug use. I cannot rule those out.
Nor can I be satisfied beyond reasonable doubt that the $6,800 found in the pantry, or the $150 found in the microwave, during the search was money received by Mr Taylor as proceeds of selling either methylamphetamine or heroin.
There are inconsistencies between the evidence of Ms Fyfe and Mr Taylor as to when Ms Fyfe received $10,000 in cash from her grandmother and what it was to be used for. Ms Fyfe said she received it in August 2018 and that half of it was to be used for her father's funeral. Mr Taylor says she received it shortly before the search and it was to be used for her grandmother's funeral.
Whilst I have reservations about the reliability of Ms Fyfe's evidence about the $6,800 in cash found in the pantry and difficulty in accepting the explanation she gave about using that cash so as not to exceed the limit on her account, the State accepts that she did receive a payment of $10,000 from her grandmother. I also accept her evidence that she received that amount of money from her grandmother.
Also, it appears from Ms Fyfe's bank statements that she received approximately $1,680 per fortnight for carers allowance and family payments from Centrelink out of which she paid for food, fuel and other expenses. She also gave evidence, which I accept, that in April 2019 and around that time, she withdrew $370 a week from her account to pay her rent.
Further, whilst I also have difficulty with the plausibility of Mr Taylor's and Ms Fyfe's accounts in relation to Mr Taylor's dealer leaving the biscuit tin containing the drugs found in the search as they contend, I am not satisfied beyond reasonable doubt that the evidence when considered as a whole, supports a finding that Mr Taylor possessed the methylamphetamine or the heroin with intent to sell it or part of it.
I am satisfied on the balance of probabilities of the following:
1.Both Mr Taylor and Ms Fyfe were active users of methylamphetamine.
2.As at 2019, Mr Taylor had a longstanding addiction to methylamphetamine and has used it since he was 19 years old.
3.Mr Taylor's use of methylamphetamine increased following the death of his mother in 2018.
4.In April 2019, Mr Taylor:
(a)was using about 1 gram of methylamphetamine a day, though he did not always use it every day; and
(b)intended to use at least 2 grams and up to 5 grams or more of the methylamphetamine per week himself; and
(c)intended to supply about 2 grams of the methylamphetamine per week to Ms Fyfe.
5.The supply of methylamphetamine by Mr Taylor to Ms Fyfe was at no cost to her in monetary terms, though Mr Taylor was living with her without paying rent or contributing to living and food costs. This was on the basis that if he did not supply her with the methylamphetamine, Ms Fyfe would have kicked him out of the house.
6.Neither Mr Taylor, nor Ms Fyfe used heroin.
As to the mitigating circumstance Mr Taylor seeks to rely on for the purpose of sentencing:
1.I find it implausible that a drug dealer would leave 20.21 grams of heroin worth in the region of $6,000 with drug users (one of whom owes him $2,000) for safe keeping and that the dealer would, in return, leave 13.5 grams of methylamphetamine worth about $3,000 with them to use at their will at no cost to them.
2.There are also inconsistencies in the evidence of Mr Taylor and Ms Fyfe as to when the unidentified dealer came to the address and left the biscuit tin of drugs with Mr Taylor. Mr Taylor said it was in March 2019, a month before the search and Ms Fyfe said it was a week or 2 weeks before, and then said it was maybe 2 weeks.
I am satisfied on the balance of probabilities that Mr Taylor intended to use some of the methylamphetamine for himself and to supply some of it to Ms Fyfe.
I am not satisfied on the balance of probabilities that:
1.Mr Taylor did not intend to sell or supply any of the methylamphetamine to anyone else; or
2.that he only intended to supply the heroin by returning it to the dealer he alleges he was holding it for.

Conclusion

As I have been unable to make positive findings as to Mr Taylor's intention under s 6(1)(a) of the MDA in relation to all of the drugs the subject of counts 1 and 2, Mr Taylor must be sentenced on the basis that he intended to sell or supply:
1.some of the 13.5 grams of methylamphetamine, the subject of count 1; and
2.all of the 20.21 grams of heroin, the subject of count 2.
Though I make no finding that the offending on each count was aggravated by commerciality, the amount of the drugs in each case was such that distribution of them, whether by sale or supply would cause significant harm to the community.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
9 DECEMBER 2021