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District Court 4 September 2020

R v Agoris

[2020] NSWDC 535

Drugs
CRIME JUDGE ALONE TRIAL ONE COUNT CONCERNING METHYLAMPHETAMINE ONE COUNT CONCERNING BUPRENORPHINE

Citation: R v Agoris [2020] NSWDC 535
Court: District Court of New South Wales
Date: 4 September 2020
Judge: Hatzistergos DCJ

Background

The accused was an inmate at South Coast Correctional Centre. Between 21 December 2018 and 7 January 2019, police intercepted a series of phone calls and text messages between the accused and Roberto Losco, a man known to the accused as an established drug dealer who had recently been released from prison. Those communications had been captured under warrants issued as part of Strike Force Aperta, a police task force investigating drug supply in the Wollongong area.

The accused faced two counts on indictment: inciting the supply of methylamphetamine (Count 2) and inciting the supply of buprenorphine (Count 1), each contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The accused elected a judge-alone trial under the Criminal Procedure Act 1986 (NSW).

The sole factual issue at trial was whether the accused's communications with Losco constituted incitement to supply the prohibited drugs. Identity, which had been flagged as a contested issue at the outset, was conceded by the defence during the trial and ceased to be a live question. (at [42])

Legal Issues

  • Whether the accused's communications with Losco amounted to an incitement to supply prohibited drugs, or were merely requests to a person known to be ready, willing and able to supply.
  • Whether the mental element of incitement is necessarily absent when the person approached is an established drug dealer familiar to the accused.
  • Whether reluctance or reticence on the part of the supplier is a precondition for a finding of incitement.

Decision

Issue 1: The meaning of incitement and the applicable mental element

The court accepted that to incite means to urge somebody to do something, and that the accused's words and actions at the relevant time must have been intended to incite the supply of the prohibited drug. (at [147]) Intention could be inferred from the circumstances and the accused's conduct before, at, or after the relevant act. (at [22]-[23])

Issue 2: Whether approaching an established dealer negates the intention to incite

The defence relied on R v Eade [2002] NSWCCA 257 for the proposition that incitement does not occur where an accused approaches a person understood to be ready, willing and able to supply drugs forthwith, because in such circumstances no urging is necessary or intended. The court accepted that this principle applies in ordinary cases, such as a simple purchase by an addict from their supplier. (at [148]) However, it rejected the broader submission that the mental element of incitement is necessarily absent whenever an established dealer is approached. (at [151]) The court noted that R v Eade expressly disavows any such broad proposition. (at [151])

Issue 3: Whether reluctance by the supplier is required

The court rejected the defence argument that incitement can only arise, in the context of an established dealer, where the supplier shows some reluctance to commit the supply. The court found no basis in R v Eade for the proposition that reluctance is a precondition to a finding of incitement where the drug cannot be supplied forthwith. (at [151])

Issue 4: Count 2 (methylamphetamine)

The accused admitted the drugs were to be on-supplied within the correctional facility and were not to be provided forthwith. (at [150]) The intercepted communications revealed extensive and repeated contact by the accused with Losco about arranging for a third party, JB, to collect the methylamphetamine, together with specific instructions about packaging and persistent follow-up when Losco was slow to act. (at [155]-[159]) The court was satisfied beyond reasonable doubt that the accused's communications were intended to, and did, urge Losco to supply methylamphetamine, and that the accused knew Losco was not ready, willing and able to supply the drugs forthwith. (at [159]-[160]) The court found Count 2 proved beyond reasonable doubt. (at [161])

Issue 5: Count 1 (buprenorphine)

The court found that Losco did not have buprenorphine in his possession when the accused first requested it, and that the accused knew this. (at [162], [167]) The accused directed Losco to multiple potential sources, including a contact named Glen Baker and a person named Olivia, and urged Losco to retain strips he had acquired while more were sourced. (at [162]-[166]) Those communications, taken as a whole, satisfied the court beyond reasonable doubt that the accused incited Losco to supply an unspecified amount of buprenorphine. (at [167]-[168])

Orders Made

  • Guilty of Count 1 (inciting the supply of buprenorphine)
  • Guilty of Count 2 (inciting the supply of methylamphetamine)

Key Takeaways

  • A conviction for incitement to supply a prohibited drug requires proof beyond reasonable doubt that the accused's words or actions were intended to urge the other person to supply the drug. The court confirmed this is the settled meaning derived from R v Eade. (at [147])
  • The principle from R v Eade, that incitement does not occur where an accused merely requests drugs from a person understood to be ready, willing and able to supply them forthwith, is confined to its ordinary application. It does not extend to a general immunity from incitement liability whenever the person approached happens to be an established drug dealer. (at [148]-[151])
  • No requirement exists that a supplier display reluctance or reticence before an accused's communications can constitute incitement, at least where the drugs cannot be supplied forthwith. (at [151])
  • Where an accused in custody orchestrates a drug supply that requires the intervention of third parties, specific packaging instructions, and persistent follow-up over days, those circumstances support a finding that the accused understood the supply was not a simple forthwith transaction and intended to urge it into being. (at [150]-[159])
  • Evidence that an accused was familiar with a dealer's general willingness to supply drugs does not, by itself, establish that the accused believed the dealer had particular drugs immediately available. Imperfect knowledge of a dealer's existing stock does not negate the intention to incite. (at [154], [167])

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 133
- Drug Misuse and Trafficking Act 1985 ( NSW), ss 25, 27

Cases
- De Silva v The Queen [2019] HCA 48; (2019) 94 ALJR 100
- Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47
- Fleming v R (1998) 197 CLR 250
- Liberato v The Queen (1985) 159 CLR 507
- R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390