The State of Western Australia v Wightman - [2024] WADC 93

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- WIGHTMAN [2024] WADC 93
CORAM:   TROY DCJ
HEARD:   8-10 OCTOBER 2024
DELIVERED          :   8 NOVEMBER 2024
FILE NO/S:   IND 76 of 2022
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
DANIEL BRADLEY WIGHTMAN

Catchwords:

Factual basis for sentence - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 31A

Result:

The offender to be sentenced on the basis contended for by the State namely that:

On 31 December 2020 the offender and a Mr Ryan Flynn were jointly in possession of a quantity of cocaine with intent to sell to another.

They were equal partners in that enterprise.

The offender believed that the quantity of cocaine was 3 ounces not 1 ounce.

Representation:

Counsel:

Applicant	:	Ms L C Burke
Accused	:	Mr R Kashyap

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	Holborn Lehnoff Massey

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

Aravena v The Queen [2015] NSWCCA 288
La Bianca v The King [2023] WASCA 109
McGrath v The State of Western Australia [2021] WASCA 118
The Director of Public Prosecutions v Roder (a pseudonym) (2024) 98 ALJR 644; [2024] HCA 15
Wark v The State of Western Australia [2020] WASCA 19

TROY DCJ:

Introduction

On the morning of trial, 7 October 2024, the accused man, Mr Daniel Wightman, entered a guilty plea to the single count on this indictment[1] of possession of cocaine with intent to sell or supply it to another. A co‑offender, a Mr Ryan Flynn, had pleaded guilty and been sentenced quite some time ago. Although it was initially accepted on behalf of Mr Wightman that he was a principal offender along with Mr Flynn, it was ultimately contended that in fact his criminal liability arises by virtue of s 7(b) or s 7(c) of the Criminal Code (WA), namely that he aided Mr Flynn to possess a quantity of cocaine with the requisite intent.
[1] Other counts being discontinued on the same day.
Mr Wightman's position was said to be analogous factually to the appellant's in McGrath v The State of Western Australia and La Bianca v The King.[2]
[2] McGrath v The State of Western Australia [2021] WASCA 118 and La Bianca v The King [2023] WASCA 109.
In pleading guilty, there remained three issues to be resolved by a trial of issues before me. These were:
1.Whether Mr Wightman's role was at least the same as Mr Flynn;
2.Whether Mr Wightman was a principal offender or an aider (of Mr Flynn); and
3.Whether Mr Wightman believed that the quantity of cocaine that he was criminally connected to was 1 ounce (28 g) as opposed to 3 ounces (84 g).
The indictment against Mr Wightman initially contained multiple counts. In October 2023 the State made an application for there to be cross admissibility between the counts, applying s 31A of the Evidence Act 1906 (WA). That application was not opposed. Further, at a hearing before his Honour Judge Maclean on 14 December 2023 it was held that in mid‑2020 Mr Wightman had a tendency to engage in the distribution of prohibited drugs with Mr Flynn.
Subsequent to that hearing the High Court handed down its decision in The Director of Public Prosecutions v Roder (a pseudonym).[3]
[3] The Director of Public Prosecutions v Roder (a pseudonym) (2024) 98 ALJR 644; [2024] HCA 15 (Roder).

In my view Roder is of general application and is not confined to cases where the allegation is of a sexual nature.
Applying the holding in Roder, I am required to approach matters in two discrete stages.
First, I have to consider whether or not I am satisfied that the tendency contended for by the State on the part of Mr Wightman existed.
Assuming I am so satisfied, that is circumstantial evidence that I am entitled to consider when I evaluate the other direct and circumstantial evidence that bears upon the three issues that I have identified at [3].
At that second stage, the State's task is to satisfy me that the only reasonable and rational inference, notwithstanding Mr Wightman's evidence to the contrary, is that he was involved with Mr Flynn on a basis that was at least equal to Mr Flynn. Second, that he is a principal offender along with Mr Flynn. Third, Mr Wightman knew or believed that the quantity of cocaine that he was connected to was 3 ounces.
The defence position is that those are not the only inferences that are available. To the contrary, there are other inferences that are available having regard to all the evidence, including Mr Wightman's evidence, namely that he was subsidiary to Mr Flynn and that his belief was confined to 1 ounce.
As I made clear during the hearing, although he chose to give evidence, there is no onus of proof on Mr Wightman. If I reject his evidence it does not follow that the State have proved the contrary.

Previous dealings between Mr Wightman and Mr Flynn

Exhibit 13 is a printout of agreed messages exchanged between Mr Flynn and Mr Wightman in late July/early August 2020.
Mr Wightman testified that the deal they discussed was a single event. Mr Wightman bought 1 ounce of cocaine in advance of the 'Oktoberfest' festival in Langley Park, Perth. Mr Wightman said he thought it was in September, but it was advertised online as 12 October 2020. There is no reason to suppose that the organisers had the wrong date. In Mr Wightman's evidence he said that he and Mr Flynn were going to use 3.5 g each on that weekend and Mr Flynn was going to sell the rest to fund their consumption. Mr Flynn had said that he had a lot of people that wanted drugs for that event.
The messages begin on 28 July 2020 with Mr Flynn referring to Mr Wightman as 'homie'. At 4.21 pm Mr Wightman asked Mr Flynn how much cash he had at home.
On 30 July 2020 at 9.26 am Mr Wightman sent a message saying, 'so I'm thinking sell off at least 1500 balls,[4] need to make money back and to give you coin for help'. Mr Flynn said, 'I reckon I can sort that' and asked, 'close mates 1350?' Mr Wightman said, 'we can do 1 or 2 at that, yeah'.
[4] A ball being 3.5 g of cocaine.
That seems to be Mr Wightman determining that only one or two close associates could receive a ball as cheaply as for $1,350. He also noted that, 'people paying 1700 a B [a ball] atm [at the moment] so still a good price [given the quality]'.
Mr Flynn said, '1500 will be easy. Has to be good though'. Mr Wightman assured him, 'it's good, this cunt moves it by the key [kilogram], like crazy amounts'.
Mr Flynn responded, 'we will be getting one a month then'. Mr Wightman wrongly thought he was referring to a kilogram, but Mr Flynn clarified he meant an ounce.
Mr Wightman told Mr Flynn that this person had sent a photograph of the drugs to his brother. Mr Wightman thought this person was associated with either 'the Rebs' [Rebels Outlaw Motorcycle Gang] or 'the Coffs' [Coffin Cheaters] but that his brother does not tell him much.
In his evidence, Mr Wightman stated that the source on this occasion was an associate of his brother. Mr Wightman arranged for an ounce to be purchased. He provided the money for that. Mr Flynn picked it up.
Mr Flynn said, 'as long as it's good we don't care'. Mr Wightman said, 'exactly'.
Mr Wightman said, 'that's why I'm saying sell for $15 - 1600 that way we don't have to fk [fuck] with it'. He also told Mr Flynn, 'My brother said promise me you won't cut [dilute it]'.
I do not read that request as being a directive from Mr Wightman, suggesting that he was in an elevated position with respect to Mr Flynn. It is, I think, equally consistent with two equal partners, with one advising the other what not to do with the product.
Mr Wightman said, 'it end up costing me 8600 so need to make a decent profit and have to give my brother a g. [$1000]'.
Mr Flynn suggested about $450 a gram and $1,500 a ball. Mr Wightman said, 'depending on who for, 1600 a B if not close. That [way] we both get decent profit out of it. We take on the risk. My brother said unless ya getting 1600 a B it ain't worth the risk'.
Mr Whiteman's evidence that he was getting 3.5 g of cocaine free of cost out of this deal is not consistent with these messages. If the cocaine was sold for $1,500 per ball the gross receipts would be $12,000, out of which $1,000 would go to Mr Wightman's brother, leaving $2,400[5] to be split evenly between Mr Wightman and Mr Flynn ($1,200 each). That was their profit. If it was sold for $1,550 a ball on average their profit would increase to $1,400. The cost price of a ball at that time ($8,600 divided by 8 = $1,075) is somewhat less than that.
[5] $11,000 less $8,600.
Mr Flynn said, 'let's run with 1500 - 1600 a ball then'. Mr Wightman said 'sweet as bro. They guys getting it in tonight. My bro will have it tomorrow arvo'. Mr Flynn said, 'no good bro. Too late'. Mr Wightman said, 'okay sweet, will be good for the weekend tho'.
This was on Thursday 30 July 2020. I am quite sure that Mr Wightman was not, in those messages, referring to the weekend of 9/10 October 2020, some 10 weeks later.
On 1 August Mr Wightman sent a message that said, 'how did you go??' Mr Flynn said, 'all sorted I'll start bagging it all up today'.
Looking at these messages as a whole, there is, to my mind, an easy camaraderie in these exchanges which suggest two men discussing relevant matters as equals.
It is not suggested that these messages are the only messages exchanged between Mr Wightman and Mr Flynn, rather that these are the only ones that were still saved on Signal.[6] Given the knowledge that both men express about prices for cocaine and the use of terminology commonly encountered in drug transactions such as 'cutting' and 'coin', I am satisfied that the only reasonable and rational inference is that Mr Wightman and Mr Flynn did not begin to deal drugs together on this single occasion. Rather, it is an example of their drug dealing which would have commenced at some point in time prior to 28 July 2020. It would be speculative to draw any conclusions beyond that.
[6] ts 151.
On one view, the decision of his Honour Judge MacLean on 14 December 2023 regarding the admissibility of these messages (when the matter was to be contested and was therefore to be tried by a judge and jury), continues to apply to my consideration of the trial of the issues identified at [3]. There was no objection to the tender of these messages into evidence. But for the avoidance of any doubt, I also consider that the evidence of Mr Wightman's activities with Mr Flynn as revealed in these messages to be propensity evidence for the purposes of s 31A of the Evidence Act.
I am further satisfied that it has significant probative value in respect of the issues I have identified at [3].
I consider that the probative value of the evidence of this tendency, compared to the degree of risk of an unfair trial (of issues), is such that fair‑minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial.
I am satisfied that in 2020 Mr Wightman had a tendency to engage in the distribution of prohibited drugs with Mr Flynn. The messages they exchanged suggests that they were equal partners. The fact that the propensity evidence relied upon by the State arguably comprised a single episode, 28 July 2020 to 1 August 2020, does not materially diminish the capacity of that evidence to be evidence of Mr Wightman having that tendency: Wark v The State of Western Australia.[7]
[7] Wark v The State of Western Australia [2020] WASCA 19 [321]. See also Aravena v The Queen [2015] NSWCCA 288 [89].
I am further satisfied that this tendency still existed in the period 27 to 31 December 2020. They remained close friends and workmates. Even on Mr Wightman's account he agreed to Mr Flynn's various proposals immediately and without any enquiry.

The involvement of Jarrahd Gibson

On 31 December 2020, police undercover operative #718 (UCO 718) arranged to meet a Jarrahd Gibson to buy 1.5 ounces of cocaine for an agreed price of $14,000.
The State called Mr Gibson at the hearing before me. He was clearly a drug dealer as of 31 December 2020 and indeed, on the evidence, continued dealing drugs even whilst on bail following his arrest on that date.
I approach his evidence with very significant circumspection for a number of reasons. Contrary to his evidence, I find that he must have known that by the time he gave his witness statement in August 2022, Mr Flynn had pleaded guilty, but Mr Wightman had not. As a result, there would have been an incentive to attribute actions of Mr Flynn to Mr Whiteman, so as to assist the prosecution's case against Mr Whiteman in a manner that was not required with Mr Flynn.
On 18 November 2022 Mr Gibson gave an undertaking[8] to give evidence against Mr Wightman. Mr Gibson's evidence is not automatically to be rejected simply because he gave an undertaking. Persons who accept their own criminality are specifically encouraged by the relevant provisions of the Sentencing Act 1995 (WA) to aid the prosecution in return for a reduction in sentence. The sentencing judge must clearly state what the sentence would have been, were it not for that co‑operation.
[8] Exhibit 5.
Because Mr Gibson was, and indeed remained, a heavy drug user as of 31 December 2020, his ability to recall events is very significantly impaired. According to his evidence, he had been using for about six months, almost every day. He said that he had not had any cocaine on 31 December until he tasted some of the product.
The possibility that some or all of Mr Gibson's disputed evidence is the product of reconstruction having read parts of the prosecution brief, as opposed to his own recollection, is a very real one. In re‑examination Mr Gibson said:[9]
… when I sit there and think about it, I can remember the whole event that went down. Right? I can remember it. There's, like, maybe a few little things that I don't really remember, like, the small details I don't - I didn't pay much attention to. Like, the only reason I know about them is because I read that small details.
[9] ts 138.
It is, of course, open to me to accept some of Mr Gibson's evidence and reject or not accept other parts.

The original contact between Mr Wightman and Mr Gibson

Mr Gibson testified that he had made an arrangement via Snapchat on 26 or 27 December 2020 to buy 3 ounces of cocaine. The price was originally $9,500 an ounce but was then very quickly (within an hour or so) brought down to $27,000 in total if he bought 3 ounces. The person that he was communicating with on Snapchat had a username of 'white‑something'. That username clearly relates to Mr Wightman. Someone else gave him this contact and said that this person will be able 'to help him'. Mr Gibson was looking for cocaine for New Year's Eve.
Mr Wightman said that in late December 2020 he and Mr Flynn were both on shift together at a regional location. Mr Wightman had been Mr Flynn's supervisor for about 12 months. On 26 or 27 December, Mr Wightman received a message on Snapchat from his housemate Aaron Scogli advising that he had a contact who was looking to buy an amount of drugs. Mr Scogli asked if it was okay to give this person Mr Wightman's Snapchat handle because he knew Mr Wightman 'was hanging out with Mr Flynn' and knew what Mr Flynn was doing.
Mr Wightman said that his housemate had met Mr Flynn on multiple occasions through himself. He believed they would have exchanged contact numbers.
Rather than asking Mr Scogli to contact Mr Flynn directly, Mr Wightman wrote back to him and said, 'Yeah, go for it'.
According to Mr Wightman, very shortly after that, he received a Snapchat message from a username he did not recognise. He assumed that it was Aaron's contact. This person, who must be Mr Gibson, said, 'I heard you can get some shit'. Mr Wightman responded, 'I've got a friend who should be able to help you out'. Mr Gibson told him, 'I'm looking to buy an ounce'. At that point Mr Wightman gave his phone to Mr Flynn and returned to work.
Mr Flynn returned the phone after a period that Mr Wightman thought was 'maybe an hour' and said, 'all sorted'. Mr Wightman did not enquire any more. His disinterest is inconsistent with his tendency to deal drugs along with Mr Flynn.
Mr Gibson's unchallenged evidence was that he only ever liaised with one individual who used the Snapchat handle associated with Mr Wightman. Of course, the possibility exists that the change from Mr Wightman to Mr Flynn was not communicated to Mr Gibson and that Mr Flynn used Mr Wightman's handle throughout. Neither party called Mr Flynn to give evidence at the hearing before me and it is important I do not speculate on what he might have said had he given evidence. I disregard the submissions made on his behalf by counsel at Mr Flynn's sentencing hearing, because in the absence of evidence from Mr Flynn they are obviously inadmissible as against Mr Wightman.
Prior to returning to Perth on 30 December 2020, Mr Wightman said that over the next few days, there were a couple of messages that came through on his phone saying, 'Are we still all good?'. On receipt, Mr Wightman would say to Mr Flynn, 'Still all good?' and Mr Flynn would say, 'Yes'. Presumably that was then relayed to Mr Gibson.
Mr Wightman's claimed role as a passive intermediary is entirely inconsistent with the way in which he and Mr Flynn interacted in late July 2020. Given Mr Flynn's interest in dealing drugs and the fact that he had both Snapchat and the encrypted application Signal, it is distinctly improbable that he would be liaising with Mr Gibson using Mr Wightman as an intermediary. I reject Mr Wightman's evidence in this regard.
I find that at all times prior to the return to Perth on 30 December 2020 the communications concerning the cocaine were made directly between Mr Wightman and Mr Gibson. I note that Mr Wightman also used Signal for a period of time.
Mr Gibson ultimately told the person on Snapchat, who I find to be Mr Wightman, that he had a couple more people who would in effect be able to club together so that they could buy 3 ounces. As a result, the price came down to $27,000 which is $9,000 per ounce.[10]
[10] ts 84.
One of those other persons was UCO #718, so to that extent Mr Gibson's evidence is corroborated.
Mr Gibson made contact with the 'White username' a day or two later to check that everything was all still good.
On 30 December 2020 Mr Gibson again contacted this 'White person' who told him, 'I can have it ready by about lunchtime'. Mr Gibson forwarded this message onto everyone else that evening.

Mr Wightman's evidence concerning the acquisition of the 3 ounces

Mr Wightman stated that Mr Flynn had arranged to come to his house at about lunchtime prior to getting on a party bus for New Year's Eve.
Mr Flynn did arrive at approximately 10.00 am, but on his motorcycle, not his car. He said to Mr Wightman, 'I've got to go and pick something up. Can you drive me?' Mr Wightman assumed it was the ounce of drugs. There would be no reason for Mr Flynn to be so cryptic in his face‑to‑face conversations with Mr Wightman and I do not accept that the conversation would have unfolded in this way.
There is a further improbability in that Mr Wightman agreed to take Mr Flynn on what turned out to be a round‑trip of about one hour, including waiting time, without asking Mr Flynn why he could not have done that himself. Mr Wightman just said, 'Yeah, no problems'. I explored this with Mr Wightman during his cross‑examination:[11]
TROY DCJ:… why was it that he couldn't go on his motorbike to get it?
ACCUSED:I have no idea.
TROY DCJ:Did you ask him?
ACCUSED:No.
TROY DCJ:Did you ask him why it was necessary for you to drive him?
ACCUSED:I didn't.
[11] ts 198.
Having driven for 20 to 25 minutes to somewhere after Beeliar Drive and parked down the road from the place they were going, Mr Wightman walked up to the house with Mr Flynn. The occupier appeared to know Mr Flynn. He went inside. Mr Wightman was invited inside, but said, 'No, thanks. I'll wait here'.

After 15 minutes, Mr Flynn re-emerged apparently concealing his purchase. They drove back to Mr Wightman's house. According to Mr Wightman,[12] there was no discussion about what Mr Flynn might have been given inside the house. Mr Flynn and Mr Wightman discussed selling cocaine for $1,500 - $1,600 per 3.5 g in July 2020. They worked together, with Mr Wightman being Mr Flynn's supervisor. They were about to get on a party bus together. Mr Wightman drove him to and from the house. It is absurd that there would have been no discussion about what happened inside that house. I reject Mr Wightman's evidence to the contrary.
[12] ts 164, ts 202.
Mr Wightman then had a shower. Mr Flynn said, 'Can we go in the car again? We need to drop this off'. Mr Wightman then said, 'Yeah, no problems'.
Mr Flynn told him that he had left 2 g of cocaine in Mr Wightman's bedroom. Police subsequently found 2 g of cocaine at that location. It is certainly possible that Mr Flynn gifted Mr Wightman such an amount in recompense for Mr Wightman's lesser role. Equally, it is possible that it was an amount of cocaine that Mr Wightman already possessed for his personal use, particularly given the time of year.
Mr Wightman said that at that stage, he knew, or at least assumed, that it was 1 ounce, based on the initial part of the conversation that he actually saw, that is, 'I'm looking to buy an ounce'.
Mr Wightman said that Mr Flynn opened up Mr Wightman's Snapchat application and there was a single saved message relating to an apartment on Stirling Street in Northbridge. Mr Wightman did not know how Mr Flynn knew the address was saved in Mr Wightman's phone. He said there was another message that came in between the time that they were at his house. It was an address. He showed it to Mr Flynn.
I find that when Mr Wightman and Mr Flynn travelled to the arranged meeting point, the 3 ounces of cocaine were in Mr Flynn's physical possession. Given the fact that I have rejected Mr Wightman's evidence of the circumstances in which it was acquired and in the absence of any evidence from Mr Flynn, I can make no findings other than the fact that at some point prior to travelling to the premises Mr Flynn had come into physical possession of that quantity of cocaine.

The meeting with Mr Gibson outside the premises

Mr Gibson's evidence was that on 31 December 2020 he messaged this person at about 10.30 am or 11.00 am to ask, 'Is everything all good to go?'. The other person, who I find to be Mr Wightman, responded, 'Yeah, mate'.
Mr Gibson then messaged the others involved in the purchase. The plan was for everyone to meet at the same place, where they could get what they paid for and all leave. He understood that one of them (the UCO) wanted to purchase 1.5 ounces for $14,000 or $14,500 and the other person (a Mr Kitchen) wanted to purchase another ½ of an ounce. With Mr Gibson's intended purchase of 1 ounce, this makes up the 3 ounces.
UCO #718 testified that Mr Gibson sent him a message that morning and gave him an address on Beaufort Street to meet him. When the UCO arrived, he met outside with Mr Gibson who was accompanied by a male (Mr Kitchen) and a female (Mr Gibson's girlfriend). They all walked up the stairs to an apartment.
This is consistent with Mr Gibson's evidence.
Mr Gibson stated that when everyone went upstairs and were waiting for them (by which I assume he meant the person he understood to use the 'Whiteman' username) to arrive, he took everyone's money (his, the UCO and Mr Kitchen's), bundled it together, and then put it in a little bag to hand it over.
Mr Gibson said that 'they messaged me on Snapchat to tell me that they had arrived'. This was from the same username.
Mr Wightman testified that Mr Flynn sent a message on Mr Wightman's Snapchat saying, 'We're here' and then he gave Mr Wightman's phone back. If matters had unfolded in the way that Mr Wightman suggests I think it would be far more probable that Mr Flynn would have simply asked Mr Wightman to tell him that 'they were there' and Mr Wightman would have sent the message on his own phone. I am fortified in my conclusion that the only reasonable and rational inference is that at all times the communications were between Mr Wightman and Mr Gibson.
Although Mr Gibson used the word 'they' in his evidence he testified that he was quite surprised there were two people there (Mr Wightman and Mr Flynn) because he was just expecting the one person he was communicating with.
Somewhat confusingly, Mr Gibson had a habit of using the plural when he seemingly meant the singular. For example he said this:[13]
COUNSEL:And you'd actually met the undercover a few days before that. Right?
GIBSON, MR: I don't recall exactly, because at the time I was, like, pretty intoxicated and under the influence. So, I don't, like, actually recall meeting them (my emphasis) face to face much.
[13] ts 107.
Mr Gibson asked one of the two men, 'So is it you I've been talking to?' and he responded, 'Yeah'. Mr Gibson said that it was only Mr Wightman who indicated he had been communicating with him. Whilst not pellucidly clear, I infer that Mr Gibson meant that it was the person he now understands to be Mr Wightman who indicated he had been communicating with him. I accept Mr Gibson's evidence that he thought he was dealing with a single individual on Snapchat. However, I conclude that just before this meeting he had been advised that two people were arriving, not one.
Mr Wightman stated that Mr Gibson shook both our hands[14] and introduced himself. They introduced themselves and went inside. Mr Flynn asked Mr Wightman to come in with him and he just went along with it.
[14] Meaning him and Mr Flynn.
The UCO testified that after a couple of minutes, Mr Gibson said he was going to bring 'the guys up' or 'his friends up'. I accept that evidence and it is for that reason that I conclude that just before this meeting Mr Gibson had been advised that two people were arriving not one.

The production of the 3 ounces

Mr Gibson brought 'his friends' up. According to UCO #718, Mr Wightman and Mr Flynn introduced themselves. Mr Flynn then removed three packages from his waistline, which turned out to be 3 ounces of cocaine, and placed them on the kitchen table.
Mr Wightman said he was shocked to find three other persons inside the apartment. He was also, 'a little bit shocked' when they started talking about 3 ounces.
According to Mr Gibson he did not see who produced the cocaine. I find that most unlikely.

Payment of the $27,000

According to UCO #718, at Mr Gibson's request, he had given Mr Gibson his $14,000 prior to the entry of Mr Wightman and Mr Flynn. I prefer the UCO's evidence to Mr Gibson's, in this regard.
Mr Gibson testified that after the packages were out, he gave the total amount of money straight to Mr Wightman. Mr Gibson said, 'It's all there. You can count it if you want to'. Mr Wightman said, 'Nah, it's all right'. Mr Gibson did not notice what Mr Wightman did with the money. Mr Gibson maintained that account in cross‑examination.
Mr Wightman disputed this, stating that Mr Gibson simply put the money on the table.
In the absence of clear evidence from the UCO I decline to find that Mr Gibson handed the cash straight to Mr Wightman.

Weighing of packages

The UCO stated that when Mr Flynn pulled out the packages and put them on the table, Mr Wightman took a seat on the bed about half a metre from Mr Flynn.
The UCO asked both Mr Flynn and Mr Wightman, 'are the weights good?' and both, 'kind of nodded'. I accept that evidence.
The UCO stated that Mr Wightman picked up the third package and placed it on the digital scales that were on the table. It weighed 32.5 g.
Mr Wightman said:[15]
I didn't do any weighing of any nature. … handing him a bag, honestly I can't recall whether or not I did that. I don't think I would have, but I can't recall.
[15] ts 170.
According to Mr Gibson, either Mr Wightman or Mr Flynn pulled out some scales and Mr Wightman said, 'Oh, they're all an ounce each and you can weight them if you want'. Then Mr Flynn went to weigh them individually. Mr Gibson said that either Mr Flynn or Mr Wightman said, 'they'll be over because of the packaging that they're in'.
In answer to a question in cross‑examination, the UCO maintained that Mr Wightman put the bag on the scales:[16]
He has stood up to do it and then I've walked over to him and looked at the scales, and then all three of us were standing quite close together and then Mr Wightman handed it to me.
[16] ts 73.
Mr Flynn said that '28 grams plus the bag and the elastic band makes 32'. Mr Wightman then handed this package to the UCO and he put it in his 'bum bag'.
It was put to the UCO in cross‑examination that it was Mr Flynn who picked up the bag and gave it to him after it was on the scales:[17]
COUNSEL:Mr Wightman sat down and Mr Flynn grabbed the bag and gave it to you?
UCO:No. That's not correct.
[17] ts 73.
The UCO expanded on that by saying that when Mr Wightman handed the drugs to him, he was quite relieved, because 'everything is ticking along as it should be'.
The UCO further elaborated that Mr Wightman had picked a package up and put it on the scales. And then Mr Flynn came from the outside, so almost over the UCO's right shoulder, to look down also. The UCO turned and looked at Mr Flynn and when he turned back, Mr Wightman handed the drugs to him.
The UCO testified:[18]
And I remember thinking, you know, this guy's handed it to me. I thought it was a bit, you know - he must have some kind of ownership over it, whereas Mr Flynn had delivered the stuff. So that's why I made it … a quite clear note in my head, okay. Maybe they're in it together.
[18] ts 78.
I accept the evidence of the UCO that Mr Wightman weighed this package and then gave it to the UCO. This was, of course, a planned operation from the police perspective. As a trained undercover operative, cognisant of the fact that there was no audiovisual recording, UCO #718 would have been conscious of the need to try to commit to memory all the actions and observations of the persons he was interacting with.
Mr Wightman's actions in weighing and then giving an ounce to the UCO are inconsistent with him thinking that there was simply going to be a sale of one ounce to Mr Gibson.

Comments on the quality of the cocaine

In relation to this package of 32.5 g (gross weight), initially the UCO said that Mr Wightman said, 'it was really good and that they'd tried it earlier and they were still up and about'.
He later adjusted that answer, in that it was Mr Flynn who said he had a line earlier that day and gone to the gym and was 'still charging', with Mr Wightman referring to seeing Mr Flynn, 'up and about, like he had just taken a line'.
Mr Wightman said he did not recall saying this.
I am satisfied that Mr Flynn and Mr Wightman, acting together, conveyed to the UCO that the quality of this cocaine was relatively high.

Allocation of the packages

There was then some confusion, in that Mr Gibson handed the UCO both one of the other full packages (that the UCO had seen on the table) and also another sandwich bag which had contained 14 g. The UCO realised he had too much, so he took the other bag that Mr Wightman had just given him and placed it back on the table. Mr Gibson picked that package up.
So, the UCO now had 42 g and Mr Gibson 28 g (32.5 g gross).
According to Mr Gibson, he took two of the three packages (that he thought were an ounce each), split one of them in half to put in the other package (because the undercover officer was buying 1.5 ounces), with the other half ounce going to Mr Kitchen.
Mr Gibson elaborated that he put a package on his scales, zeroed out the scales, and then took out 14 g and put it into the other package, for the UCO.

Discussion about future business

The UCO began talking with Mr Flynn about future business and the future purchase of prohibited drugs. Mr Wightman was now sitting on the bed talking with Mr Gibson.
The UCO explained that Mr Flynn was the one that he had seen removing the three packages from his pants, 'and I figured he was the guy to talk to'. Further, it would have been awkward to cut Mr Flynn out of a conversation to talk to Mr Wightman while he was standing beside the UCO.
Part of the transactions that I have now described were covertly recorded and the audio recording was played in court. The UCO said that he could hear Mr Flynn talking about the weights on the scales, and then Mr Wightman talking having tried it that morning.
Mr Gibson maintained that in speaking, as he said he was, with Mr Wightman:[19]
I remember that specifically because I know what I said. I was talking about - bragging about how much I could get rid of in about a week's time and that I'd be potentially wanting to get more if it's good.
[19] ts 129.
Counsel put to Mr Gibson:[20]
COUNSEL:I'm going to suggest you had that conversation with Mr Flynn because it was Mr Flynn who you understood had put the drugs on the table?
GIBSON, MR: My conversation was directed straight at Mr Wightman.
[20] ts 129.
I accept that the UCO was in conversation with Mr Flynn at this time. There is no suggestion in the evidence that Mr Wightman at any stage said to Mr Gibson that he was not the person that he had been conversing with via Snapchat. Mr Gibson is adamant that at this point he was conversing with Mr Wightman. Whilst being mindful of the matters referred to at [40] - [43], I am satisfied that he was.
Mr Gibson accepted that, when interviewed on the day of his arrest, he compared Mr Wightman to being like his girlfriend, both really doing nothing in the room. He stated, in effect, that his recollection of this interview was poor.

Conclusions

I am satisfied that throughout the period of approximately 26 December 2020 to 31 December 2020 it was Mr Wightman alone who liaised with Mr Gibson.
I am satisfied that in those conversations, the price per ounce was reduced slightly to reflect the fact that a larger quantity, 3 ounces, was to be obtained. Mr Gibson's actions, as corroborated by the UCO, are consistent with that understanding. Given my finding that it was Mr Wightman who was liaising with Mr Gibson, it follows that Mr Wightman was aware from the outset that the agreement related to 3 ounces of cocaine, not 1 ounce.
I am satisfied that Mr Wightman and Mr Flynn acted in tandem, as they did in late July 2020.
I accept that when they attended at the premises on 31 December 2020 Mr Flynn had physical possession of the 3 ounces, but I find that Mr Wightman jointly possessed that quantity, in that he exercised control and dominion over it, along with Mr Flynn.
I reject Mr Wightman's account of the circumstances in which he said Mr Flynn acquired the 3 ounces.
As stated, Mr Wightman's actions, as I have found, in weighing and then giving an ounce to the UCO is inconsistent with him thinking that there was simply going to be a sale of 1 ounce to Mr Gibson.
I find that both Mr Wightman and Mr Flynn assured the UCO of the quality of the cocaine.
Accordingly, I am satisfied beyond reasonable doubt that:
1.In respect of the transaction of 26 - 31 December 2020, Mr Wightman and Mr Flynn were equal partners.
2.On 31 December 2020 Mr Wightman and Mr Flynn were jointly in possession of a quantity of cocaine with intent to sell to another.
3.On 31 December 2020 Mr Wightman believed that the quantity of cocaine was 3 ounces.
I will sentence Mr Wightman on that basis.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ES
Associate to Judge Troy
8 NOVEMBER 2024