The elements of the offences established by Mr Plato's guilty pleas

1. A plea of guilty is a formal admission of each of the legal ingredients of the offence.[4]
2. The elements that are established because of Mr Plato's guilty pleas are as follows. For each of counts 1 - 3:
   1. The relevant package or envelope contained methylamphetamine. The Misuse of Drugs Act 1981 (WA) provides that methylamphetamine is a prohibited drug.
   2. Mr Plato knew that the package or envelope contained a prohibited drug of some kind. The State does not need to prove that Mr Plato knew the precise kind of prohibited drug, nor the weight or quantity of prohibited drug.
   3. Mr Plato intended to possess the prohibited drugs in the package or envelope.
   4. Mr Plato began to put his intention to possess the prohibited drugs in the package or envelope into execution by personally doing an act that was more than merely preparatory to obtaining possession of those drugs.
   5. Had Mr Plato obtained possession of the prohibited drugs in the package or envelope, he intended to sell or supply at least some of those prohibited drugs.
3. With regard to count 4, Mr Plato possessed the ketamine found at the Innaloo unit on 13 July 2021. Ketamine is a prohibited drug. He intended to sell or supply at least some of that ketamine to another.

The established facts directly relevant to counts 1 - 3

1. From the brief, Detective Psaila-Borrie's evidence, the two exhibits tendered at the trial of issues, and in the context of the elements established by Mr Plato's guilty pleas, I find the following facts established.
2. At 7.55 am on 7 July 2021, a DHL package sent from Germany was intercepted and examined by officers of the Australian Border Force, (ABF), at the air cargo facility at Perth International Airport. It was seemingly sent by a William Bockhorn in Germany on 3 July 2021.[5]
3. An ABF officer conducted an X-ray examination of the consignment.[6] Another ABF officer noted that it was addressed to Phillip James, at a particular address in Kingsley (the Kingsley address).[7] Following the presumptive testing,[8] it was placed into an evidence bag seal number WA019842.[9] It was sealed with Australian Federal Police (AFP) reference number GR-210179007.[10]
4. I note that when a person consigns an item using DHL they are provided with a 'House Air Way Bill' number which enables them to track the shipment.[11]
5. This evidence bag then came into the custody of the Western Australia Police Force and was placed in conveyance movement envelope T082961.[12] The electronic evidence recording shows that the package (GR-210179007, physical material number 1A) contained (1AAAAA) 56 g of methylamphetamine. It was placed in security movement envelope W001648667.[13]
6. The drugs W001648667 when subsequently analysed was found to contain 55.3 g of methylamphetamine at a purity of 78%.[14] This gives rise to count 1.
7. On the same morning, another DHL package sent from Germany was also intercepted and examined by ABF officers at Perth Airport.[15] The parcel was addressed to 'JAMES Phillip' also at the Kingsley address. It had seemingly been sent by a James Attick in Germany on 29 June 2021.[16]
8. Tracing it through again, following examination it was sealed with AFP reference number GR-210178204.[17] It was placed inside evidence bag WB009896[18] and then in conveyance movement envelope T082961.[19]
9. The electronic evidence recording shows that the package (GR-210178204, physical material number 1B) contained (1BAAA) 55.54 g of methylamphetamine. It was placed in security movement envelope W001648668.[20]
10. The drugs in that envelope when subsequently analysed was found to contain 54.8 g of methylamphetamine at a purity of 82%.[21] This gives rise to count 2.
11. I am satisfied that on 29 June and 3 July 2021 a total of 101.1 g of methylamphetamine in two packages was sent from Germany to the Kingsley address linked to Mr Plato. As soon as those packages (although now the methylamphetamine had been swapped for an inert substance) were delivered to the Kingsley address, Mr Plato collected them.
12. Prior to that delivery and collection, however, the authorities discovered another consignment linked to Mr Plato. At about 9.10 am on 9 July 2021, a mail article inside an Australia Post envelope was intercepted and opened. The envelope was addressed to 'attention James Phillips' at the Innaloo unit. This was Mr Plato's address at the time. The envelope is said to have originated in the United States of America.[22] It is not clear from the brief when it was sent.
13. The envelope contained a vacuum-sealed silver foil bag, within which was a vacuum sealed bag containing a crystallised opaque substance. It was repacked into the mail article in its original state and placed into the ABF temporary storage facility as WB006799.[23] It was sealed with AFP reference number GR-210180676.[24]
14. The police did not attempt to deliver it to Mr Plato.
15. The electronic evidence recording shows that the package (GR-210180676 physical material number 1C) contained (1CAAAA) 102.34 g of methylamphetamine. It was placed in security movement envelope W001648669.[25]
16. The drugs in that envelope, when subsequently analysed was found to contain 101 g of methylamphetamine at a purity of 82%.[26] This gives rise to count 3.
17. The total quantity of methylamphetamine was 211.1 g at a purity of 78% - 82%.
18. On 13 July 2021, police officers made a controlled delivery of the two DHL envelopes that relate to count 1 and count 2. In each case the methylamphetamine was replaced with an inert substance and the packages reconstructed. Posing as a delivery man, a police officer knocked on the front door of the Kingsley address at 1.34 pm. The officer handed both packages to Mr Plato's father who signed a delivery register form.
19. Mr Plato arrived at this address in his car at 1.47 pm and departed in the same car at 2.03 pm.[27] I am satisfied that he had unsuccessfully attempted to collect the packages from DHL Express at Perth International Airport at 12.45 pm.[28]
20. At about 2.05 pm Mr Plato was stopped by police while driving his vehicle. The two DHL envelopes were in the front centre console. A black Samsung Galaxy mobile phone was in the centre console.

The established facts directly relevant to count 4

1. At about 4.00 pm on 13 July 2021 police searched the Innaloo unit. Mr Plato accepted that he lived there at the time.[29] They found the following:
   • a set of electronic scales with traces of methylamphetamine on the top surface of the scales;[30]
   • a total of 28 small clip seal bags of ketamine, each marked either 'KHW' or 'K5' in weights varying from 0.47 g to 1.97 g and totalling 14.79 g;[31]
   • empty clip seal bags located with the ketamine; and
   • a notebook in the same drawer as the ketamine, as photographed at Exhibits 1.4 to 1.6.

1. In respect of counts 1 - 3, on each count the issues between the prosecution and Mr Plato are:
   • what quantity of methylamphetamine did Mr Plato intend to gain possession of?
   • did Mr Plato intend to sell at least some of the methylamphetamine as opposed to merely supply some of it?
2. In respect of count 4, the issue between the prosecution and Mr Plato is, did Mr Plato intend to sell at least some of the ketamine as opposed to merely supply some of it?
3. The State correctly accepted that to establish that Mr Plato intended to obtain the actual quantity of methylamphetamine that was sent to him, as opposed to some lesser quantity, it would be necessary for the State to prove that fact beyond reasonable doubt. Equally, to establish that Mr Plato intended to sell at least some of the relevant drug it would, again, be necessary to prove that fact beyond reasonable doubt. There is no onus on Mr Plato. I cannot draw any adverse inference against Mr Plato because he chose not to give evidence in the trial of issues.
4. Whilst the effect of a plea of guilty means that all defences have been negatived, it does not necessarily constitute an admission of all the facts relied upon by the State for the purposes of sentencing.
5. Where disputed facts are raised in a trial of issues, if a sentencing judge is not persuaded of the existence of a particular fact or circumstance, whether mitigating or aggravating, the absence of that fact does not mean that the converse fact is proved. In such circumstances the fact simply does not exist for the purposes of sentencing.[32]
6. It is not open to me to make any finding against Mr Plato by inference unless the inferred finding is the only reasonable and rational conclusion open on the material before me taken as a whole.

Other relevant evidence bearing on the disputed issues

1. When police seized Mr Plato's Samsung phone he declined to provide his PIN code. The Digital Forensics Unit within WA Police were able to access the mobile phone using the Cellebrite program. The result of that analysis is set out in an extraction report.[33] The 'Settings' area of the phone refers to Phillip Plato, and seemingly gives his Hotmail email address.
2. On 25 November 2020, a person referred to as 'Jelly Tits' (owner) began to message an unknown person from this mobile phone using the application Telegram. The State allege that 'Jelly Tits' is Mr Plato. In one message, Mr Plato is alleged to have stated:[34]

1. The State allege that Mr Plato, made Notes on the phone at 5.38 pm on 5 January 2021. Set out in the Notes are six names or nicknames with what appears to be cash owed.[36]
2. On 7 January 2021 the State allege the following conversation occurred between Mr Plato and a person called Lee:

MR PLATO: What you after, boss? 200 worth?

LEE: Yeah, mate, if cool

MR PLATO: I have to include travel in my time, et cetera, so I could only do two pt[37]

LEE: That's fine. If you can drop, bro, would be awesome.[38]

1. On 14 January 2021 the State allege that Mr Plato was asked by someone on Telegram, 'How much cash for 4 pts?' And that he replied:[39]

1. On 1 May 2021 there are messages on the phone, using the application Grindr, from the person referred to as 'owner', said by the State to be Mr Plato, with the handle or nickname 'Classy'. The State allege that Mr Plato had a conversation with a person called David and referred to, 'grabbing the gear'.[40] The participants then messaged in code.[41]
2. On 25 May 2021, the State allege that Mr Plato began to message a person called 'Lettario Amadeus' using the application Signal and referring to 'Sprite' and 'mechanical gears'.[42]
3. The State allege that on 26 May 2021 Mr Plato sent a message which reads:

Can you do 10 mil drink and 2 p for 200, my dear?

1. Clearly the participants in these messages are using code.
2. Also on Signal, there are exchanges between the person referred to as Phillip Plato (owner) and a person referred to as 'Jack' on 24 June 2021 as follows:[44]

JACK: How much cash bro

MR PLATO: It's gross price but it could be cut fifty-fifty. You must try

And I'm low.

Could do max 1g

JACK: I'm just finishing at mum's. Can come to you now if free.

MR PLATO: You only have me 500, ha, ha, ha. I'll cop it though. Should have counted it when you were here.

1. And then on 10 July 2021 as follows:[45]

MR PLATO: can you get be a gram asap?

JACK: I've just sold out sorry.

1. Also, on 10 July 2021 a person referred to as 'R u chasin!?' sent a message on Grindr to 'Classy' (said to be Mr Plato) asking:[46]

1. Plainly this person (perhaps unsurprisingly given his less than opaque nickname) did not believe in using code.
2. The State allege that the following conversation involving Mr Plato occurred:

MR PLATO: signal me bitch $.

R U CHASIN: you don't reply on signal.[47]

I've got the best stuff in town bar none.[48]

what's your budget?

MR PLATO: 400hw is the upper dollhair.[49]

R U CHASIN: let's do 375

and you can round it down to 370.[50]

MR PLATO: so I can bring you cash mid-morning, you obvs know I'm not going to skip a tik.[51]

Like 10 am?[52]

1. On the day before Mr Plato's arrest, 12 July 2021 the State allege that Mr Plato sent a message, via Signal:

It's fucked at the moment so really expensive but the stuff is actually decent. 400.

1. The State allege that Mr Plato replied:[53]

1 see. Would you go 300 + 1g of ketamine? Or is cash king atm

1. I bear in mind that on the following day Mr Plato was in possession of 28 clip seal bags of ketamine and also the mobile phone used to send and receive these messages.
2. When police searched Mr Plato's car, they found an empty DHL package in the boot which related to a delivery to the Kingsley address of an item weighing 0.24 kg and which had been sent from Germany on 16 June 2021.[54]

1. I am satisfied that the 5 January 2021 Notes section on Mr Plato's phone is a 'tick list', namely a list of persons owing money for the supply of drugs.[55] I am further satisfied that the pages of his notebook found with the ketamine as photographed as Exhibits 1.4 and 1.6 constitute tick lists recording money owed for drugs. I am not sufficiently satisfied of page 5. I am satisfied that Mr Plato compiled the list in his phone and the two lists in the notebook.
2. I accept Detective Psaila-Borrie's evidence that phones seized from persons suspected of dealing with drugs often contain encrypted applications such as Telegram and Signal. Both, as noted, were found on Mr Plato's phone.
3. There was no evidence in the trial of issues hearing of anyone else having access to Mr Plato's phone. Mr Plato was found in possession of the phone within 24 hours of some of the messages relied upon by the State being sent and received. It is implausible in the extreme that over a period of some eight to nine months another person or persons was routinely sending messages on Mr Plato's phone, purporting to be Mr Plato, in a manner that would incriminate Mr Plato if the phone came to the attention of the police. I am entirely satisfied that Mr Plato sent the messages attributed to him.
4. In tendering the messages, the State was not seeking to prove that the contents of any of them were true, or that they were directly connected to any of the quantities of methylamphetamine or ketamine the subject of the counts in the indictment. Their potential relevance was that they had been found on a mobile phone in Mr Plato's vehicle, and were part of the circumstantial case against Mr Plato that he intended to sell at least some of the methylamphetamine in each of the three packages and also intended to sell some of the ketamine.
5. The State did not seek to rely upon the previous conduct as revealed in the messages as propensity evidence under s 31A of the Evidence Act 1906 (WA) and I take the State to have relied upon this evidence as circumstantial evidence at common law.
6. There was no objection to the State relying on this material. Harriman v The Queen[56] and Atholwood v The Queen[57] are authorities for the proposition that evidence that an accused was involved in drug dealing at a time approximate to the period of the alleged offence is probative of the element of intent to sell or supply.
7. In this case, given the fact that the elements of the offences are admitted, the evidence bears upon the aspect of whether there was an intent to sell at least some of the relevant drug. If there had been an objection, I would have held that the probative value of this evidence exceeded any potential for prejudice.
8. In respect of the latter point, I remind myself that merely because Mr Plato was involved in drug dealing transactions in the months that led up to July 2021, it does not automatically follow that he must have intended to sell at least some of the drugs that he attempted to possess and did possess as of 13 July 2021.
9. Mr Plato's bank statements shows that he was seemingly employed by an entity called Northern Suburbs Community Legal Centre. I calculate from those statements that in the three months up to his arrest he received $14,902.24 in remuneration from that source.
10. I accept Detective Psaila-Borrie's unchallenged evidence that if someone in Western Australia was purchasing prohibited drugs from overseas, using 'the Darkweb', the seller would expect the purchaser to pay upfront for the drugs. It would be very unlikely for a drug supplier to extend credit to a person half the world away without an established business relationship.
11. I accept Detective Psaila-Borrie's unchallenged evidence that as of July 2021 in Western Australia, 0.1 g of methylamphetamine, or a point, sold for $100 to $150. And that, 28 g, or an ounce, would sell for between $11,750 to $26,000. It follows that 211.1 g of methylamphetamine had a 'retail value' of between $88,548 and $316,500.
12. The evidence clearly establishes that a person or persons overseas sent three separate packages containing a total of 211 g of methylamphetamine to Mr Plato. This total amount was worth at least $88,548 if it was all sold in Western Australia. It is entirely implausible that any of the three packages would have been sent without having been specifically requested by Mr Plato and paid for by him in advance. I am prepared to accept that, as the State acknowledged in earlier written submissions, the purchase price may well have been substantially less than this minimum value of $88,548.
13. Circumstantial evidence must not, of course, be considered on a piecemeal basis. It must be evaluated in its entirety: R v Hillier.[58]
14. I am satisfied from the evidence, considered as a whole, that as of 13 July 2021 Mr Plato had a client base for illicit drugs and was able, therefore, to sell some of the drugs he intended to possess to that base.
15. Contrary to the State's submission, it is speculative to reason that Mr Plato only ordered the third package because of the apparent delay in delivery of the first two packages. I note that Mr Plato had seemingly received an earlier delivery from Germany in mid-June 2021.
16. I am satisfied that the only reasonable and rational inference is that Mr Plato intended to possess the entirety of each of the three packages, totalling, therefore 211.1 g of methylamphetamine.
17. The messages sent by Mr Plato, together with the tick lists, clearly show him to be in the business of drug dealing in 2021.
18. Mr Plato had the means to source drugs, but not to the extent that he could take custody of such a valuable commodity without seeking to recoup some of the cost of acquiring it. Whilst accepting that his outlay for these drugs may well have been significantly less than the potential sale price, there would have been an outlay which would have to be recouped. These drugs had a very high potential value.
19. Whilst also accepting that Mr Plato may have had a drug habit at this time and would have consumed some of this consignment of methylamphetamine himself, I am satisfied beyond reasonable doubt that he intended to sell at least some of the drugs in respect of each of counts 1, 2 and 3.
20. When I consider the quantity of the ketamine as a whole, the fact that it was individually packaged into 28 separate clip seal bags of broadly comparable weights, the declaration of an intention to use ketamine as part purchase of methylamphetamine, the tick list found with the ketamine, as well as the empty clip seal bags, I am driven to the conclusion that Mr Plato intended to sell at least some of it. Given the packaging, it is distinctly possible that he intended to sell all of it, but I will draw back from such a conclusion.
21. Accordingly, in respect of counts 1, 2 and 3, I will sentence Mr Plato on the basis that he intended to possess the entirety of each of the three packages, and that, on each count, he intended to sell at least some of it for commercial gain.
22. On count 4 I will sentence Mr Plato on the basis that he intended to sell at least some of the ketamine for commercial gain.

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

[1] In conformity with the principles discussed in, for example, Harvey v The State of Western Australia [2015] WASCA 250 [39].

[4] Strbak v The Queen [2020] HCA 10; (2020) 267 CLR 494 [32].

[6] House Airway Bill Number (HAWB) 141515700, PB 84.

[14] Certificate of analysis at PB 141.

[21] Certificate of analysis at PB 142.

[26] Certificate of analysis at PB 142.

[31] Certificates of analysis at PB 147 - PB 148.

[32] Law v The State of Western Australia [2009] WASCA 193 [34] (Buss JA).

[35] The State say a reference to a half weight, namely 0.5 g.

[37] The State say a reference to two points.

[56] Harriman v The Queen [1989] HCA 50; (1989) 167 CLR 590.

[57] Atholwood v The Queen [2000] WASCA 76; (2000) 110 A Crim R 417.

[58] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).